Here Comes The Orphan Works Bill Again

March 29th, 2008 | Posted in News

I’ve written a number of times about this scourge of evil that lobbyists are trying to push through the legislature. Basically it’s a law that allows publishers or whomever to use creative works without paying the creator if the creator cannot be located by the vaguely defined “reasonably diligent search”. That’s bad enough, when any copyright violator can claim the made a “reasonably diligent search” if busted by the original creator, but previous incarnations also limited the amount a creator could receive in a court case so that it would cost the user of the creative works little or no more to try and use it without a real try at a search for the creator than it would if they contacted them and paid for it up front.

No word if that kind of language still exists in the “New and Improved” Orphan Works bill being introduced next week, but there is disturbing news that several groups that opposed the bill last time around will not be doing so this time. According to the Illustrator’s Partnership, several “artist’s groups” have withdrawn their opposing in exchange for concessions that benefit their groups. No names and no details beyond that. The full release from IP:


The New “Improved” Orphan Works bill is due out next week. We expect it to be much the same as the last one. Unfortunately, the Orphan Works landscape has changed.

Several groups which opposed the bill last time will not oppose it this time. They’re ready to concede defeat in return for concessions for their groups. They’ve also insisted that no other visual artists speak out against it. They say we must all capitulate in order not to endanger the concessions they want. They say we have to show Congress that artists speak with one voice: theirs. That creates a problem.

Not all visual artists have the same stake in copyright protection. Who owns the copyrights to your high school yearbook photos? Your wedding photos? Bar mitzvah pictures? How often has that ever been an issue?

If you don’t make your living primarily by licensing copyrights, you may not have the same stake in this bill as those of us who do.
Moreover, visual arts groups don’t exist by licensing copyrights; artists do. So whatever concessions might be acceptable to an artists group might still harm the careers of artists.

We believe the way to speak with one voice is not to submit to a bill that would:
– Create uncertainty in commercial markets;
– Nullify the exclusive right of copyright and therefore
– Reduce the value of your work;
– Threaten the privacy protection afforded by current copyright law; and
– Invite retaliation from abroad.

Instead, Congress should be lobbied to draft specific, limited exemptions that permit the use of true orphaned work. When we’ve seen the new bill, we’ll provide you with suggested language for writing lawmakers. In the meantime, you can help by continuing to spread these emails to any interested party, both in the US and overseas.

Remember: the US Orphan Works amendment is not an exception to copyright law to permit the archiving and preservation of old, abandoned works. It is a license to infringe contemporary works by living artists worldwide. Its goal is to force these works into private commercial US registries as a condition of protecting copyrights.

Coerced registration violates international copyright law and copyright-related treaties. To concede defeat on it is to knock a hole in copyright law and admit a Trojan horse.

?¬¢‚Äö?ᬮ” Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership

That does not sound good, but I will be interested to find out which artists groups are doing this and what the “concessions” are. There is a vast copyright search database that companies must search prior to using or copyrighting things like names or slogans, so there should be one for general creative works if such a bill is to function as a law.


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