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 According to the Illustrator’s Partnership, several “artist’s groups” have withdrawn their opposing in exchange for concessions that benefit their groups.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:

FROM THE ILLUSTRATORS’ PARTNERSHIP

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.

— 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.

I’ve written several times about the Orphan Works legislation, and it’s implications on freelance illustrators. This post describes it best, but here it is in brief: The Orphan Works Act is a change to copyright law that allows any party (publishers, advertisers) to use a piece of intellectual property (a photo, illustration, cartoon, etc.) if the owner of the copyright of said piece of intellectual property cannot be identified or located. The law requires a ‘reasonable effort’ to search for the copyright owner, but does not define what a ‘reasonable search’ entails. The law also limits the money that can be recouped by the copyright owner even in they notice their copyrighted work was used without being contacted, and somehow prove the user did not make a ‘reasonable effort’ to find them.

Yes, it’s that bad. A license to steal and then claim that a “reasonable effort” was made to find the owner of the original copyright if busted.

The original bill died in congress, but it turns out it was just hibernating.

FROM THE ILLUSTRATORS’ PARTNERSHIP

It’s Back!

Just when you thought it was safe to draw a picture without putting a copyright symbol on it, the Orphan Works bill has returned.

Orphan Works “will likely be a priority…this spring” for the House Judiciary Committee, writes Andrew Noyes in the National Journal, Feb. 21, 2008

According to Noyes, “American Library Association copyright specialist Carrie Russell said her members are ‘excited about having orphan works legislation’ move this session,” adding that if it does, “‘we’ll be dancing in the streets.’” But the article notes that “last time around,” artists did a different kind of dance:

“The Illustrators’ Partnership of America argued in letters to lawmakers last time around that the bill was written too broadly and would have exposed artists’ work to infringement upon creation.”

And so it would have.

While we won’t judge the new bill until we’ve seen it, we’re still concerned that it may be written so broadly as to force artists to rely on registries or other formalities as a condition of protecting their copyrights. Forcing artists to rely on registries by exposing unregistered work to infringement is coerced registration. And coerced registration is at the heart of the orphan works debate.

Coerced registration violates the spirit of international copyright laws and trade agreements. It invites retaliation from overseas. It would turn artists into bookkeepers. It would force us to spend countless hours filing and maintaining countless copyright registrations in a futile effort to monitor infringements — futile because no registry can ever protect artists from infringement, which can occur anytime, anywhere in the world.

Since 2006, when the first bill was called back to the shop for repairs, registries have become a hot topic among those wishing to sugarcoat it for quick passage this fall. We’ll have more to say about coerced registration in future emails. We think it will be central to the debate over Orphan Works this time around.

— Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership

For additional information about Orphan Works developments, go to the IPA Orphan Works Resource Page for Artists