US Orphan Works Act - a global threat to artist rights

[velvet]

Y'know the old saying "When America sneezes the whole world gets a cold"? I would like to remind DU readers that the monstrous Orphan Works Act of 2008 now before the US Congress will have consequences for artists all over the world.

The Illustrators Partnership of America ( http://www.illustratorspartnership.org/index.php ) sums up the legislation concisely:

"The Orphan Work bills would mandate the creation of registries by commercial interests. You would not be legally forced to place your work with these for-profit registries. But failure to do so would orphan your work."

The following is from their website, pasted here for your convenience. Alternatively the link is at the bottom.


For our International Friends and Colleagues

by The Illustrators' Partnership

To: Non U.S. Visual Artists
For our International Friends and Colleagues

Below is a sample letter that you may edit to personalize.

We recommend that you send copies to the four U.S. agencies listed below. Faxing is recommended. (Postal mail can be delayed 2 - 3 weeks due to off-site security screening prior to arrival on Capitol Hill.)

We also urge you to contact your government and urge intervention. Please help spread the word by forwarding this information to every artist that you know. Thank you.


SAMPLE LETTER FOR INTERNATIONAL ARTISTS

Dear _____________________,

I'm writing to urge you to oppose the U.S. Orphan Works Bills, H.R. 5889 and S. 2913, introduced into the House and Senate on April 24, 2008. These bills would amend Chapter 5 of Title 17, United States Code, (Copyright law) by adding “§ 514. Limitation on remedies in cases involving orphan works.” This new limitation on remedies will be imposed on any copyrighted work wherever the infringer can successfully claim an orphan works defense, whether legitimate or adjudicated by courts to be conclusive.

The Orphan Works Act defines an “orphan work” as any copyrighted work whose author any infringer says he is unable to locate by means of a “reasonably diligent search.” The infringer himself will be allowed to determine when he has met this imprecise test. The infringer would be free to ignore the rights of the author and use the work for any purpose, including commercial usage. This is a radical departure from existing international copyright law and conventions, as well as normal business practices.

These bills will have a disproportionate impact on visual artists because pictures are commonly published without credit lines or because credit lines can be removed by others. This is especially true of art published in the Internet Age. And since unmarked pictures cannot be sourced or dated, works by artists like me – who live and work outside the U.S. - will be just as vulnerable to infringement as the work of American artists.

Because visual art is so vulnerable to orphaning, there is only one way to match an unmarked image to its author: by relying on image-recognition databases. The Copyright Office has stated that with the passage of these bills, such registries will be “indispensable,” and they have stipulated that the registries must be created in the private sector and run as commercial, for-profit ventures.

Forcing artists to rely on any form of registry to protect their work is a violation of the Berne Convention for the Protection of Literary and Artistic Works. This law forbids any member country to impose registration on a rights holder as a condition of protecting his copyright. See Berne. Article 5(2) “The enjoyment and the exercise of these rights shall not be subject to any formality.” But forcing international artists to rely on commercial registries in order to protect their work from infringement - made legal by a law unique to the United States - is deeply troubling.

There are many reasons why international law forbids coerced registration. Before such registries can be meaningful, all the billions of images currently protected by copyright must first be entered into them with authorship information intact. That means that millions of pictures from around the world which go unmatched will be orphaned, even if the artists are alive, working and managing their copyrights. This would even be true of images registered in the databases, but which go unmatched because of computer errors.

There is no limit on the number of these registries or the prices they would charge. The burden of paying for digitization and depositing the digitized copy with the private registry would fall entirely on the artists. Most professional artists have created thousands – or tens of thousands - of drawings, sketches, photos and paintings. This includes both published and unpublished work. The costs of paying to have all these works digitized and registered would be beyond their ability. Yet the Copyright Office has stated explicitly that failure of the artist to meet this nightmarish bureaucratic burden would result in his work being automatically “orphaned” and subject to legal infringement.

Presumably the Copyright Office and Congress expects non U.S. artist like me to register all their past and future art with the new hypothetical U.S. databases, or see my work exposed to commercial infringement under U.S. law.

These bills will create massive uncertainty in the markets where visual art is bought, sold and licensed. It will do this by voiding entirely the exclusive rights of every visual artist whose work any infringer can lay claim to. Reason: I would be powerless to stop the unauthorized uses of my art, even in cases where I would never, or could never, permit those uses. Besides seeing my work used in objectionable or defamatory ways, this will void existing contracts already in force between me and my clients. This is an attack on the principle of art itself, because my exclusive right of copyright is the only tool I have to assert creative control over my work and to protect its value in the marketplace.

The U.S. is a member country of the Agreement on Trade-Related Aspects of Intellectual Property (The TRIPs Agreement). Article 13 of this copyright-related treaty allows certain “limitations and exceptions” to an artist’s exclusive right of copyright. These are codified as a Three-Step Test:

“ Member shall confine limitations and exceptions to exclusive rights to:
(1) certain special cases
(2) which do not conflict with a normal exploitation of the work
(3) and do not unreasonably prejudice the legitimate interests of the rights holder."

The Orphan Works Bills of 2008 have been written so broadly that their use cannot be confined to true orphaned work. These bills will violate the Berne Copyright Convention and fail the Three-Step Test of TRIPs.

Any Orphan Works solution should precisely define an orphan work as a copyright no longer managed by a rights holder, and be limited to uses in the cultural heritage sector for noncommercial purposes, or use by museums and libraries for preservation and education.

Sincerely,

____________________________________


PLEASE SEND COPIES TO:

Ambassador Susan C. Schwab
Office of the United States Trade Representative
600 17th Street, N.W.
Washington, DC 20508
United States of America
FAX: [phone]
(Telephone: [phone])


Marybeth Peters
Register of Copyrights
U.S. Copyright Office
101 Independence Ave. S.E.
Washington, D.C. 20559-6000
United States of America
FAX: [phone]
(Telephone: [phone])


Jon W. Dudas
Director
United States Patent & Trademark Office
P.O. 1450
Alexandria, VA 22313-1450
United States of America
FAX: [phone]
(Telephone: [phone])


Reuben Jeffrey III
Under Secretary for Economic, Energy and Agricultural Affairs
U.S. Department of State
2201 C Street NW
Washington, DC 20520
United States of America
FAX: [phone]
(Telephone: [phone])

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http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00267

[PetrusMonsFormicarum]

1. Thanks for the heads up!

I knew I should spend more time looking away from my drafting table!

[RB TexLa]

2. I saw this on another thread and thought why wouldn't these be treated as any unclaimed property?

If I leave $50 in a bank account, the bank can't just say they tried to find me and keep the money. Couldn't these properties go through the same process of going to the state and being held?

[NashVegas]

4. Your Uncopyrighted Images

Would be the $50 gift that keeps giving, where corporate logos are concerned.

[RB TexLa]

5. If the state was holding them? I don't understand your response.

[NashVegas]

6. Let's Say You Come Up With Some Nifty Graphic

And use it in your sig.

A year later someone does a web search that turns up a thread you posted in, and that person just happens to work for a PR company or ad agency and they think that graphic would work great for their client and decide to lift it. Six months later you see a bus go by and the image you created is being used to sell soft drinks.

If your image is registered, you get to sue their ass or at least file a ceast and desist. If it's not, even though you have evidence you're the creator - say you uploaded it three years before the ad came out - you're screwed.

Current laws don't force you to register to retain copyrights, but professionals usually do. The average person who plays around with Photoshop or Gimp or whatever, isn't going to.

This is about robbing from people who post their creative works to the web without thought of compensation, and profiting from their work.

[RB TexLa]

7. And if the state were holding the rights to it as unclaimed property as an alternative to this deal

they would not be able to use it. I was trying to think of something different and put up something other than the act proposed.

I was thinking of the works that are sitting in production companies that can't be used right now because they are orphaned works and what to do with them. I don't support this act being proposed. However I'm sure there is much orphaned work that should see the light of day if a solution can be found to make the real best attempt to find ownership.

[NashVegas]

8. Why Should the State Hold These Images?

There're no real orphans when it comes to the internet. Everyone is traceable, one way or another.

[RB TexLa]

9. I was thinking about a way to remove the works from people who would use them

after "trying" to find the owner. And something or an idea of something that might have a chance to work without it being a handout to companies looking to rip off the estates of dead artists. There are orphaned works the bill is trying to get at, owned by the estates of people dead for many years. I'm sure there are screen plays and scripts written on experiences throughout American and world history that could be absolutely incredible pieces of work. There does need to be a way to find ownership other than what is proposed.

But just go back to posting as if I were defending an act I don't support.

[NashVegas]

3. Would This Be the Intellectual Property Squatting Rights For Ad Agencies Act?

I'll pass this one around.

[jmowreader]

10. The for-profit stipulation is what gets me

Why would the registry HAVE to be run for profit? (Yes, I know, it's the Bush administration. Sorry.) It seems to me that a group of artists could join together, pay a couple bucks a month each just to meet expenses, and run a registry as a non-profit entity. But that doesn't appear to be allowable--everything has to be for profit today. Sad.

[velvet]

11. Useful link : Auto-email/Letter templates for US residents

Here : http://capwiz.com/illustratorspartnership/home/