[Orphan Works] Keeping y'all updated; radio semi-silence

[maradydd]

As promised:

The House version of the Orphan Works Act of 2008

The Senate version of the Orphan Works Act of 2008

As some readers have observed, there are slightly different provisions in the two bills, and only one or the other of them (possibly amended) can be signed into law; either the House version will pass the House and be voted on in the Senate, or the Senate version will pass the Senate and be voted on in the House, or neither version will pass its own chamber and it won't be an issue.

I intend to post a point-by-point comparison of the two bills, but it may be a while in coming. My friend Eric's death is hitting me pretty hard, and I'm not really up for doing a lot of blogging at the moment. In the meantime, Alex Curtis over at Public Knowledge has some good commentary; feel free to collect other useful links in the comments to this post, if you like.

Comments

[starprincess035.livejournal.com]

Sorry about your friend.

[(Anonymous)]

I am very sorry about your friend and hope that you are able to find peace with his passing.

Thank you very much for the extensive coverage you have done on the orphan works issue! FYI, people are still referring to your older articles, claiming that there is no 2008 bill...perhaps a update/disclaimer should be added to them now that they are no longer accurate?

Orphan Works

[(Anonymous)]

I agree also that you have a responsibility to update your information on the Orphan Works Bill as soon as possible.

You've had at least 2 weeks todo this.

Start what you finish please.

[lilenth.livejournal.com]

To be entirely blunt, while I do agree some people are panicking and some misunderstandings have been spread about, the bill does not seem to be nothing to worry about.

I am curious,

You are apparently neither a working artist, nor are you qualified in legal matters it seems. You have no background that I can determine that would be relevant to this issue or that would prove that you are uniquely suited to decipher this particular bill.

So I would wonder why so many proponents of the bill are touting your commentary in particular as being the one to listen to. Forgive me if I'm a bit skeptical about the value of commentary by someone who appears to have no relevant experience or skills.

Furthermore the source of "good commentary" you provide is woefully under informed in some matters, one wonders if he is even aware that the reason that visual recognition software has not had universal take up yet is that it is exceedingly expensive to both buy the software and register the particular details. Artists are not paid the earth and many do not have $500+ to plunk down for a service that is still in infancy in terms of technology, and it's not entirely fool proof yet. We do not have the technology to provide near perfect tracking of visual image yet.

My take on the bills

[(Anonymous)]

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.

Richard Gagnon

orphan works bill

[(Anonymous)]

Dear Ms. Patterson:

I read your 'blog' about the orphan works bill(s) now about to cross the voting threshold in Congress. In the version I read, you had claimed that there were no bills; apparently now you have recanted. My name is Steve Missal, and I am an instructor at the Art Institute of Phoenix. I and many of my colleagues are genuinely concerned about this measure, and have also researched it to find out the particulars and consequences. Among my peers with whom I teach are two Emmy winners and a host of nationally known illustrators, designers and animators. None are intellectual flyweights. I myself have worked with Scholastic Books, Thomson Publishers etc. and am listed in numerous Who's Who, and Outstandings....in other words, none of us is a putz.
We were a bit insulted by the language you used in describing Mark Simon's reaction to the proto-bill, and in addition, felt your analysis both premature and flawed. I'd like you to understand that in the professional world, we generally don't refer to someone as 'Z', or as using crack (albeit a colloquial phrase...yes, we're not that ignorant). Frankly, to post a debunker column or blog about a subject that is crucial to the intellectual/creative community's ability to function freely demands a high level of decorum, a professional air that was acutely lacking in your piece. You allude in your bio to a linguistics degree et al...I assume you feel that your intellectual credentials trump anyone else's? I myself prefer Moonhawk Alford over a Chomskyite...or have I wandered too far from teaching life drawing and character design?
My point is obvious: your column was hubristic, insulting, and incorrect. I contacted Brad Holland for some help in this, and he sent the following information (which I will send in a second post, apparently otherwise I exceed your 4300 character limit); this is in regards the House version of the Orphan (not orphaned) Works bill (HR 5889). Please take a look and see if perhaps there is something to the anxiety surging through the creative community.

-----------------------------------------------------

Regards,

Steve Missal
Art Institute of Phoenix
Link | Reply | Thread


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orphan works bill addendum

[(Anonymous)]

May. 14th, 2008 02:57 pm (UTC)
Missal post
This is the addendum (with Brad Holland's words) to my previous post:

There is a good deal of misinformation about this going around, but I hope we can clear up some of it.
Go to the bill you sent me and please read this section again, starting here:


SEC. 3. DATABASE OF PICTORIAL, GRAPHIC, AND SCULPTURAL WORKS.
(a) Establishment of Database-
(1) IN GENERAL- The Register of Copyrights shall undertake a
certification process for the establishment of an electronic database
to facilitate the search for pictorial, graphic, and sculptural works
that are subject to copyright protection under title 17, United States
Code.

And follow to this section:


SEC. 4. EFFECTIVE DATE.

(a) In General- With respect to works other than pictorial, graphic, and
sculptural works, the amendments made by section 2 shall apply to
infringements that commence on or after January 1, 2009.
(b) Pictorial, Graphic, and Sculptural Works- With respect to pictorial,
graphic, and sculptural works, the amendments made by section 2 shall--
(1) take effect on the earlier of--
(A) the date on which the Copyright Office certifies under section 3
at least 2 separate and independent searchable, comprehensive,
electronic databases, that allow for searches of copyrighted works
that are pictorial, graphic, and sculptural works, and are available
to the public through the Internet; or
(B) January 1, 2013; and

It’s true that neither the House nor the Senate drafts of the bill contain the word “registries.” They contain the word “databases,” a synonym.



Registry: register: an official written record of names or events or transactions wordnet.princeton.edu/perl/webwn
Database: A database is a structured collection of records or data http://en.wikipedia.org/wiki/Database


Why a synonym? Because international copyright law forbids member countries to impose registries as a condition of protecting copyrights:
Berne/Article 5(2) ”The enjoyment and the exercise of these rights shall not be subject to any formality.” http://www.law.cornell.edu/treaties/berne/5.html

In other words, if they used the word “registries” in the bills, it would be a red flag to other countries that the US is flirting with non-compliance with international treaties.
Congress can’t pass a law making registration mandatory because that would violate Berne/Article 5(2). And that would state explicitly to other countries that the US no longer intends to honor its international agreements.

Or to put it still another way: the bill won’t impose registration on you. They’ll simply expose your work to infringement if you don’t impose registration on yourself.
I hope this answers that question.

Now this one:

I read a column by a woman (forgot the name unfortunately) that supposedly debunks the entirety of the Orphan Works fears.


You may be referring to “Six Misconceptions About Orphan Works,” which was written before these bills came out and which we responded to at the time. Our response is archived here:

http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00264


Her “column” argued that there were no orphan works bills in the works (the bills came out a few days later, as we had predicted) and she tried to “debunk” our warnings by citing current copyright law, which, of course, these bills are intended to change. It was not a well-informed article.

Thank you for following this issue and for writing to congress. Unfortunately things are moving fast there, and it’s going to take a real effort to stop them. We may be asking everyone to write again soon – this time to support an amendment limiting the application of orphan works law to orphan works.

Kind regards,

Brad Holland

-------------------------------------------------

Photo restoration is allowed under current copyright law

[(Anonymous)]

Section 106A, Rights of certain authors to attribution and integrity, discusses copyright owner rights to integrity including the ability to prevent the destruction of a work of "recognized stature". Subparagraph (c)(2) states [quoted in entirety]: "The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence."

Subparagraph (c)(2) basically allows the restoration of a damaged photo and recognizes that such efforts are not considered a violation of the work.

One has to be concerned when the keynote justification, used by the Register of Copyrights, for creating an orphan law, is false. Just for chuckles, I googled photo restoration services and none I looked at had any FAQs that stated they would not restore an old photo due to copyright concerns. I won't take you to task for not knowing this fact, but you may want to take a different critical perspective of these bills when the number one person in the copyright office is either lying or incompetent and cannot be trusted to accurately describe the laws that she is responsible for following and protecting.

Your blog has unfortunately lulled a lot of people into complacency such that they will not try to oppose this bill by writing to their legislators. I don't think you expected what you wrote to snowball the way it did. You've had a number of people give you different perspectives and correct some of the misconceptions that snuck into your initial blog on the subject. I'd hope that your earlier positions have been modified with the new information at your disposal, including the actual bills that have moved this from an intellectual discussion to a real one. You'll still have a different perspective than a photographer or artist that has to worry about the ease at which their works can be orphaned. This is an important subject that should not be glibly dismissed.

There truly is no reason for any copyright owner to want to see one of these bills passed into law. There are better means to protect and preserve our history without giving commercial entities wide latitude to safely infringe copyrighted materials because it is difficult to locate the copyright owner. It would be stupid for any copyright owner to willingly give up some of the legal rights they currently have for nothing in return.

Richard Gagnon

[waywardradish.livejournal.com]

I agree wholeheartedly with all of the professional artists and art instructors who have bothered to chime in on this issue here.

You are not an artist, not by any stretch of the imagination. I'm sure there are better ways of trying to prove your erudition than self-righteously denigrating the interests of professionals in fields in which you have no real experience.

RIAA definition of search diligence

[(Anonymous)]

The Recording Industry Association of America (RIAA) has things to say about copyright orphans. This is same record industry organization diligently going after online copyright violations of their works. They have heart-tugging stories showing the need to create orphans because they cannot market old recording packages with a variety of extras such as reviews, old concert posters, and other nice fillers. They also have this quote that gets to the heart of what a "diligent search" is: "At the same time, limited consumer demand for older recordings requires that costs must be held down as much as possible. When copyright owners cannot be identified and located with a reasonable level of diligence, a producer may be faced with the choice between the risk of liability for proceeding without having obtained clearances from all parties with a potential copyright interest and not using the material at all." To the RIAA, orphan legislation will allow them to do less intensive searches to find copyright orphans without the risks of infringement penalties.
http://www.copyright.gov/orphan/comments/OW0687-RIAA.pdf

People need to pay more attention to the language of the bills regarding the lack of details for search criteria. Too many people, including yourself, have assumed searches more diligent than that which is performed today with the attendant risks of infringement lawsuits. Nobody really knows what the search requirements will be. Nobody will know until the law is passed. Then, it's too late.

Richard Gagnon

[hallowmas.livejournal.com]

I just wanted to let you know that I have linked your journal in one of my post, I hope you don't mind, but if so I can remove it.