Plight Of The Orphans
Something of a panic has gripped the independent creative community over the Orphan Works legislation currently working its way through Congress. The outcry began over the problematic Orphan Works Act of 2006 (H.R. 5439), which suffered a well-deserved death in September of that year, and resurfaced this spring with the introduction of the revised Orphan Works Act of 2008 (S. 2913, H.R. 5889) on April 24th. Unfortunately, there has been no shortage of fear-mongering since that time, with artists crying “Fire!” in crowded movie theaters on blogs and discussion boards across the Internet. To make matters worse, creators who have yet to even review the proposed legislation have been only too eager to dog-pile in outrage over the “corporate power-grab” which this apparent infringement on their rights supposedly represents.
Before I go any further, let me fully disclose the context from which I speak. I was schooled in the fine and applied arts, and have made my living both as an independent artist and in the animation industry. I have registered various copyrights and trademarks over the course of my career, and have no interest in seeing my creative work used without my consent. So, in the world of “users” and “owners” (those who use copyrighted work and those who create and/or own it), you can place me squarely in the camp of “owner”. In short – I’m a content creator. Yet I see the need for Orphan Works legislation, and firmly believe that the process should not be feared and obstructed, but rather engaged and capitalized upon. (Indeed, the Chinese word for “crisis”, wei ji, literally translates as “dangerous opportunity”.)
Orphan Works legislation attempts to address a long-standing problem that recently came to a head at the Holocaust Memorial Museum, where curators are sitting on a vast collection of family photos from Holocaust victims – unwilling to exhibit them for fear of statutory damages and attorney’s fees. These photos are so-called “orphan works” with no identifiable owner. The problem of orphan works is very real. In short, an “orphan work” is one that is protected by copyright, but whose creator/owner cannot be identified and located. Given that copyright law currently protects your work for the course of your lifetime plus 70 years beyond your death, there is plenty of time to lose track of who owns what – especially in the case of unmarked works. Those in favor of Orphan Works legislation include most curators and archivists, librarians and publishers, writers and documentarians. Steve Worth, Director of ASIFA Hollywood, puts it thus:
As an archivist at a non-profit museum and library, I would love to make the material in the ASIFA-Hollywood Animation Archive more widely available. But unless the situation changes, the treasures we are accumulating will be bottled up in a building on Burbank Blvd. It’s important to be able to get the information out to the people who can use it in the way that they want to be able to access it. The idea of a library being a big building with marble walls and bookcases is a thing of the past. So are archives that make you sit at a table and wear white gloves while someone hands you a box and stands over your shoulder watching you while you open it. Today, the greatest library, museum and archive in the world is sitting on everyone’s desk and it’s connected by a wire to everyone else’s desk. Copyright law needs to change to reflect those new realities, if it doesn’t it will continue to be an impediment to learning.
Those opposed include many fine artists, photographers, designers, writers and other content creators. The Illustrators’ Partnership of America, the National Press Photographers Association and the Advertising Photographers of America have been leading the charge for protest and action. Nevertheless, the Professional Photographers of America, the Picture Archive Council of America and the North American Nature Photography Association support the current House bill. The Graphic Artists Guild, while not supporting the legislation, has asked its members to refrain from writing protest letters.
Mark Dery of print magazine, not an advocate of the Orphan Works Act in any way, nevertheless takes an even-handed view that is quite frankly missing from most of what passes as discourse on this topic:
Clearly, the tangle of copyright law that constricts the public domain and criminalizes noncommercial remixing—that recut Star Wars video or music mash-up you just uploaded—needs detangling. But, just as clearly, we shouldn’t trample the rights of the individual creator in our rush to throw wide the gates of the creative commons. The right of copyright holders to determine how their works are used must be balanced with the right of fair use. The ability of the individual creator to profit from the sale of her work, free from infringement, is desperately important. But so is greater access to the orphaned works of artists lost in time.
There is great pressure on Congress to adopt some form of Orphan Works legislation, based upon the notion of the “Public Good”, which tends to outweigh consideration for individuals claiming economic impact. Like it or not, there is a societal need to facilitate the free exchange of information and ideas that all but guarantees some form of Orphan Works bill will eventually pass. For artists to pester Congress to reject any bill whatsoever is ultimately more harmful, as it removes any incentive for our lawmakers to accommodate the genuine material concerns of content creators. Far better to encourage our public servants to include language that protects the rights of creators and owners while also addressing the principle of the Public Good. And as for “Private Evil” (the aforementioned “corporate power grab” that some of my colleagues are whipped up about), yes – it’s true that most companies will be happy to see an Orphan Works bill become law… just as it’s true that there will be some that seek to take advantage of the situation. But taking advantage of situations is all in a day’s work for corporations. It’s to be expected, if not embraced. So, what possible sense does it make for artists to effectively remove themselves from the table by “just saying no”? None, from where I sit.
The 2008 Orphan Works legislation provides for a limitation on statutory damages and/or attorney’s fees imposed against the user of a copyrighted work as long as the following hold true:
- The user undertook a qualifying search to locate the owner, and could not find him/her
- The user identified the owner to the extent possible when using the work
- The user stopped using the work if the owner surfaced and requested a cease-and-desist
- The user acted in good faith in searching for and negotiating with the owner
- The user paid royalties to the owner on a “willing seller, willing buyer” standard if the use was commercial in nature, for certain usage categories
The 2008 legislation also includes the following:
- A study of the copyright registration deposit system by the General Accountability Office
- A requirement that orphan works be identified with a special symbol to be determined by the Copyright Office
In addition to the above provisions contained within the recently passed Senate version, the House version of the Orphan Works Act (H.R. 5889) contains these considerations:
- Delay of the effective date of commencement until the earlier of 2013 or the date on which the Register of Copyrights certifies two databases that can be used to search for works
- A requirement for users to file an advance Notice of Use with the Copyright Office
- Allowance for judges to award extra compensation if a work was registered
As of this writing, the Senate has passed its version of the Orphan Works bill. Given that the House version of the bill contains language that is more amenable to content creators (such as the requirement of a Notice of Use), the smart play is to encourage your Representatives to stick to their guns and not adopt the Senate’s language.
It goes without saying that you should always be sure to cover yourself by:
- Registering your work with the Copyright Office
- Marking physical copies with your name & contact info
- Embedding metadata in digital copies with your name & contact info
- Requesting credits on print uses of your work
Nevertheless, it is important to note that while registration of your work is strongly advised as a matter of practice, you are not required to register your work to keep it from becoming “orphaned”. Registration is valuable because it protects your rights to the fullest extent possible, but if you can be identified and found without the benefit of a registry, then your work cannot be considered “orphaned”. It also cannot be considered an orphan work simply because a user is unwilling to look for you, or because you decline to license or sell it. Believe it or not, even a lack of ownership information attached to a work fails to automatically qualify it as “orphaned” (much in the same way that you are not required to brand your children with your name in order to keep the state from rustling them up).
The matter of what constitutes a “reasonable search” for the owner is the primary concern of users and owners alike (though for opposite reasons, obviously). A fair and feasible standard must be created that takes into account variations of commercial and non-commercial use, among many other factors – such as whether the private sector should be allowed to offer registration services, and what fees might be involved. This is an area in which the most incendiary claims are being made by those opposed to Orphan Works legislation, including that:
- Your entire body of artistic output will be automatically “orphaned” with the passage of this bill into law
- You will be required to scan and register, at your own expense, every piece of artwork you have ever created in order to received copyright protection
In the first place, the use of an “orphan work” requires, at a minimum, the following due diligence (as specified in S. 2913):
- a search of the records of the Copyright Office that are available to the public through the Internet and relevant to identifying and locating copyright owners, provided there is sufficient identifying information on which to construct a search;
- a search of reasonably available sources of copyright authorship and ownership information and, where appropriate, licensor information;
- use of appropriate technology tools, printed publications, and where reasonable, internal or external expert assistance; and
- use of appropriate databases, including databases that are available to the public through the Internet;
Given these provisions, which represent the minimum definition of a “reasonable search”, it is hard to imagine litigation-shy corporations appropriating works willy-nilly like kids in a candy store. When in doubt, the instinct will be to avoid trouble. And any companies that lack this instinct are already liable to infringe (and prepared to fend off court challenges) under current law, so the “new” concern is ultimately a wash.
Let’s also take a good look at that last provision: the use of databases that are available to the public through the Internet. Got a website with your work on it? Then your work already fits Congress’ definition of being in a database available to the public. Infringer beware! And to my earlier point about finding opportunity in the face of “crisis”, imagine the traffic benefits to sites such as The Illustrator’s Partnership of America or Animation Nation if they offered free database services to their members. Makes plenty of Google Adsense to me. 😉
“But… what about all of my work in physical form that has not been digitized?” Well, at the risk of sarcasm, are you expecting a corporate paramilitary team to come rappelling into your house to separate you from your art? If so, you’ve probably got bigger problems than orphan works. If not, take the same precautions with your sketchbooks that you do with your checkbooks, and employ sensible measures to collect and protect your digital droppings.
The Orphan Works Act is certainly not ideal, but neither is current copyright law. Is the former being put forward in the spirit of Fair Use, just as the latter was? Yes. Are there problems with the former and the latter? Yes. Can we imagine the possibility of abuse of the former? Yes. Can we acknowledge the reality of abuse of the latter? Yes.
As with any piece of legislation, there will be pros and cons, unintended consequences and unforeseen benefits. But the train is rolling. You can block the track and get run over, or you can jump on board and help steer. So by all means, write your legislator immediately – but consider your stance carefully.
And don’t forget to sign it! 😉