To put the bottom line up front, both bills provide too much latitude for abuse by commercial concerns by eliminating the penalties for using orphan works. Although the Copyright Register has cited a number of nonprofit uses for the bills, there is nothing in them that restricts the use of copyright orphans to nonprofits. A bill, that expands the nonprofit Fair Use of copyrighted works would support the proposed necessities for copyright orphans without the possible risk of creating a legal means of safely infringing legitimate copyrights.
Both bills represent an additional section to copyright law to cover copyright orphans. The primary purpose of both bills is to define a copyright orphan, loosely detail standards for a search of the copyright owner, and removes the remedies for copyright infringement, that copyright owners otherwise have, for use of orphaned works. All these bills do is remove some protections that copyright owners have once their works are considered copyright orphans. For anybody who has copyrighted works, these bills offer no new protections. They only remove the rights that the copyright owner has to sue for infringement.
The bills are nearly identical word for word with three exceptions. 1. The House bill requires that anybody, who wants to use a copyright orphan, must file a Notice of Use with the Copyright Register. There is nothing requiring that these notices be searchable by the public. It at least requires some effort by infringers, using copyright orphans, that documents the level of search they did prior to using the orphaned work. 2. The House version does not allow the use of images on useful articles. That would disallow T-Shirt companies to use copyright orphans. 3. The House bill does not allow images to fall under this bill until either two approved image registries exist or the year 2013 passes--whichever comes first. The Senate bill uses a year of 2011 instead. That means that images can become copyright orphans earlier in the Senate bill whether or not there are approved registries that could be used to search for copyright owners.
Should one of these bills become law, the entire scope of potential problems with copyright orphans rests entirely on the level of effort expected to be performed to search for the copyright owner. A lot of people have great faith that a true diligent search will exhaust every possible avenue to find the copyright owner. All they have to do is meet the definition of the law and the bills only provide a generalized definition. The Register of Copyrights is already on record, in their full report on the subject, that they do not want to define search criteria. I'm rather pessimistic about diligent searches truly being done for a variety of reasons: - The purpose of these bills is to create copyright orphans. That means courts will leniently rule in favor of creating such orphans. - The bill is ostensibly being created to benefit nonprofits. Nonprofits have neither the money nor resources to do exhaustive searches. The level of effort expected in diligent searches will be dictated by the constraints of nonprofits. - Removing financial penalties removes the incentive to truly perform diligent searches. - Guidelines for diligent searches will primarily be created by infringers. Few creative communities will want to develop templates for creating copyright orphans. It's against their goals to foster a creative environment. More importantly, they could be legally liable for anything that goes wrong.
Here are some ways that works can be unintentionally orphaned: - Using different signatures online and in the real world. - No contact info. - Stale contact info. If old contact info is on a copyrighted work, it's potentially orphaned.
It's not enough to know who created a work. Registered copyrights, published books, and other works, where the copyright owner is known, does not prevent a work from being orphaned. A work is orphaned when an infringer "was unable to locate the owner of the infringed copyright." The more a person changes their contact information over the years, the more likely that the person will have old orphaned works.
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My take on the bills
Date: 2008-05-10 02:20 am (UTC)Both bills represent an additional section to copyright law to cover copyright orphans. The primary purpose of both bills is to define a copyright orphan, loosely detail standards for a search of the copyright owner, and removes the remedies for copyright infringement, that copyright owners otherwise have, for use of orphaned works. All these bills do is remove some protections that copyright owners have once their works are considered copyright orphans. For anybody who has copyrighted works, these bills offer no new protections. They only remove the rights that the copyright owner has to sue for infringement.
The bills are nearly identical word for word with three exceptions.
1. The House bill requires that anybody, who wants to use a copyright orphan, must file a Notice of Use with the Copyright Register. There is nothing requiring that these notices be searchable by the public. It at least requires some effort by infringers, using copyright orphans, that documents the level of search they did prior to using the orphaned work.
2. The House version does not allow the use of images on useful articles. That would disallow T-Shirt companies to use copyright orphans.
3. The House bill does not allow images to fall under this bill until either two approved image registries exist or the year 2013 passes--whichever comes first. The Senate bill uses a year of 2011 instead. That means that images can become copyright orphans earlier in the Senate bill whether or not there are approved registries that could be used to search for copyright owners.
Should one of these bills become law, the entire scope of potential problems with copyright orphans rests entirely on the level of effort expected to be performed to search for the copyright owner. A lot of people have great faith that a true diligent search will exhaust every possible avenue to find the copyright owner. All they have to do is meet the definition of the law and the bills only provide a generalized definition. The Register of Copyrights is already on record, in their full report on the subject, that they do not want to define search criteria. I'm rather pessimistic about diligent searches truly being done for a variety of reasons:
- The purpose of these bills is to create copyright orphans. That means courts will leniently rule in favor of creating such orphans.
- The bill is ostensibly being created to benefit nonprofits. Nonprofits have neither the money nor resources to do exhaustive searches. The level of effort expected in diligent searches will be dictated by the constraints of nonprofits.
- Removing financial penalties removes the incentive to truly perform diligent searches.
- Guidelines for diligent searches will primarily be created by infringers. Few creative communities will want to develop templates for creating copyright orphans. It's against their goals to foster a creative environment. More importantly, they could be legally liable for anything that goes wrong.
Here are some ways that works can be unintentionally orphaned:
- Using different signatures online and in the real world.
- No contact info.
- Stale contact info. If old contact info is on a copyrighted work, it's potentially orphaned.
It's not enough to know who created a work. Registered copyrights, published books, and other works, where the copyright owner is known, does not prevent a work from being orphaned. A work is orphaned when an infringer "was unable to locate the owner of the infringed copyright." The more a person changes their contact information over the years, the more likely that the person will have old orphaned works.
Richard Gagnon