Reported by Tess Taylor
June 23, 2008
I’ve been analyzing Orphan Works legislation for several weeks, have researched it and received input from many sources. I wanted to be circumspect about this before reporting to you, our members and readers.
The legislation is a threat to the livelihood of creators, and I urge you to be as assertive as possible with all members of Congress and the Senate in voicing your objections to it. I include a link to a template in this article for a letter you can send to your Congressmen and Senators. It takes 2 minutes.
Big Changes To The Copyright Act That Will Affect YOU
Congress is quietly passing a significant change to the Copyright Act that will radically restructure copyright law and legalize the infringement of artists’ rights.
Driven by commercial interests, the Shawn Bentley Orphan Works Act (named for the late AOL lobbyist) creates a safe harbor that will allow the use of songs, sound recordings, illustrations, music videos or any other copyright in any manner by anyone (whom the Shawn Bentley Act defines as an infringer) who is unable to find the copyright owner after a “reasonably diligent” search “in good faith.” No requirements exist for a “reasonably diligent search” in the Act.
“Safe Harbor” For Infringers
In a nutshell, the Shawn Bentley Orphan Works Act gives infringers yet another “safe harbor” from statutory damages or legal fees unless the infringer acted in bad faith in his search, which can only be proven in a lawsuit. The burden of proof (and court costs) lies with the copyright owner.
In Orphan Works Land, the infringer is not required to notify anyone of his use of a copyright under the terms of the Senate bill. The House bill requires notice, but only to a secret “dark archive” in the Copyright Office that can only be seen by the copyright owner if he files a lawsuit.
What If You Track Down The Infringer?
What if the copyright owner somehow manages to track down the infringer? The copyright owner must sue for “reasonable compensation” — not statutory damages, not costs, but “reasonable compensation.” That means the court gets to decide.
What if the artist was a Democrat and his recording was used by a Republican in a campaign ad? Or vice versa? What if a sound recording was a soundtrack recorded with orchestra, with the musicians entitled to residuals? What if a featured performer was entitled to negotiate for separate compensation under his union agreements? Tough luck. Get a lawyer to help you fight this union-busting law.
Altruistic vs. Commercial Business Interests
When the “Orphan Works Act” surfaced a few years ago, it was touted as a way for non-profit museums, archives and libraries to bring old works to the public without fear of lawsuits for statutory damages. The trouble with the proposed legislation is that it now applies to both “altruistic” and purely commercial business infringers. (Google is a major proponent of this legislation and has in fact testified it intends to use “millions” of orphan works.) No restrictions exist in the Shawn Bentley Orphan Works Act as to who gets to benefit from the admitted infringement — NONE.
The Library of Congress has never conducted a needs assessment, any kind of independent study or economic analysis of the consequences to what it now actively promotes to the detriment of creators. The Orphan Works legislation is being pushed by Google and the Electronic Frontier Foundation (EFF), among others, each of whom has its own economic motive for wanting to deprive authors and creators of their rights.
NARIP’s Position to Orphan Works Legislation: Emphatically Opposed
NARIP takes issue with this legislation because there is no responsibility to the creative community, it’s all about users. We’ve seen a remarkable shift from incentivizing creators and enabling them to protect their personal property, to “let’s provide a means and find a way to protect infringers so we can make sure they’re not prosecuted.”
A Shell Game
The people who want to use these copyrights don’t want to sift through thousands of works like Grandma’s poems or Johnny’s kindergarten crayon sketches, they want to use works that have commercial recognition and value. Their argument that the vast treasure trove of America’s creativity will be lost but for this proposed legislation is a shell game. It’s not true. The real objective is to have immunity from infringement. This is not absolute, sometimes infringers won’t get away with it, but it puts the onus on the creator/author to enforce an ever-broadening swath of infringement and downright theft. And it IS theft – it’s taking something that you didn’t create and that doesn’t belong to you just because you want it.
Use of YOUR Works
The Orphan Works Act will allow the use of an “orphan” work in any manner, including motion picture (of any rating including X), television or radio advertisements for any product (including political advertising in a nice gift of the Congress to themselves), remix, mash-up, whether commercial or non-commercial. The exploitation could also be a re-release of the original work with no changes.
The Senate Judiciary Committee and the IP Subcommittee of the House of Representatives have both passed their versions of the bill, which are very close to each other.
The Senate bill must pass the whole Senate, and the House bill must pass the House Judiciary Committee and then be voted on by the whole House.
This is cause to be very concerned.
International copyright laws mandate that no country can require registration as part of the ability of copyright holders to enjoy the protections of their exclusive rights — including in these United States. The Shawn Bentley Orphan Works Act does not come right out and say “you must register,” but it is hard to see how an artist or copyright owner will get protection from failing to register, in effect, having his work “orphaned.” Under this bill, to keep their works from being orphaned, artists would have to register their works in some database (for a fee, no doubt) that an “infringer” is likely to search.
The database could be run by an Internet company such as Google (one of the bill’s backers), which would stand to make a huge profit. In fact, Creative Commons announced on May 22 that they intend to start such a database. (Creative Commons receives long-term support from Google as well as thousands of dollars.)
Proposed Orphan Works Legislation Makes It Easier for Infringers To Infringe
In effect, this bill places any copyrighted works (including paintings, photographs, artwork, etc.) in a quasi-public domain state. U.S. copyright recognizes copyright as a personal property right, but the proposed legislation up-ends this, suddenly making it much easier for infringers to infringe, profit from your work and get away with it.
Can’t you just see it now: “This line of Jurassic Park T-shirts? Oh, we couldn’t find the owner of the artwork in the Creative Commons database, so we just went ahead with it. Great, aren’t they? $29.95 plus tax.”
We hope you share NARIP’s outrage and fight back! Included below are links for more information, and a link to a site which makes it possible to write your Senators and Congressmen in 2 minutes. Or use the template provided below.
By the way, this outrage is not limited to artists, songwriters, record companies and music publishers, it is a threat to all who create and/or own copyrights.
All Authors and Creators Urged To Oppose This Legislation
We welcome all authors and creators who wish to oppose this legislation.
Contact Your Congressmen And Senators NOW
Click here to go to the site to contact your Congressmen and Senators and select the letter captioned “For Owners & Authors of Musical Works & Sound Recordings.”
Over 90,000 e-mail messages have been sent to Congress from this site since its launch several weeks ago. As Rep. Delahunt’s office told the Boston Herald recently: “In response to the outcry against the bill, U.S. Rep. Bill Delahunt (D-Quincy) wants to give artists more of a say. ‘It’s been a while since we’ve heard from that many people from the artists community,” said Mark Forest, Delahunt’s chief of staff. ‘If they’re concerned, we’re concerned.'”
Please join in this email and telephone campaign. Let your representatives in Congress know you’re concerned — or furious! As you can see from Rep. Delahunt’s comments, the smart ones do listen to their constituents. Particularly in an election year.
Please pass this on.
Take Action NOW
Orphan Works may be presented for vote as soon as next month. NARIP asks for your help. Contact your representatives in the House and Senate NOW to explain to them the harm Orphan Works could mean to your businesses.
Alert your representatives in the House and Senate that a bill is coming up for vote that will be harmful to independent artists, songwriters, labels and musicians.
Contact info for your congressional representatives, if you don’t already know it, can be found here.
The U.S. Small Business Administration is also watching developments on this issue. You may contact them at email@example.com
We welcome all creators who wish to oppose this legislation, click here.
Sample Letter: Urge The Congress and Senate To Reject Orphan Works Legislation (HR 5889 and S 2913)
[In lieu of sending the following snail-mail letter, you may opt to do so online by going here – mail, email, call or do all three – whatever it takes!]
Dear [fill in name of appropriate Representative or Senator here] ——————:
I urge you to reject the above-referenced bills, they are unnecessary and threatening to the future of America’s creative community. These bills impose unacceptable conditions on authors and owners who wish to protect their work from unauthorized use. Copyright authors and owners need all economic deterrents to theft to remain fully intact and operative, especially when the music industry is already being decimated by massive worldwide infringement and suffering billions of dollars in losses each year.
I have no objection to the creation of a database of current owners of copyrighted works, which would be organized and made accessible through the U.S. Copyright Office Web site. The Copyright Office already has an Address Update system of records. If you wish to make it easier for authors and owners to provide updated contact information on a voluntary basis, please instruct the Register of Copyright to activate this Address Update system of records as part of its online Web site and make it available to the public.
I would also ask that you instruct the Copyright Office to make all of its records available to the public online, as doing so would obviate the need for harmful federal legislation like the Orphan Works bills.
Please redouble your efforts to protect music as a rich economic and cultural asset, which exists only because of the incentives currently afforded to copyright authors and owners to be adequately compensated for their work.
[Insert YOUR NAME here.]
SOURCES FOR MORE INFO
Google Donates $30K to Creative Commons
Creative Commons announces new funding
Google to use “millions” of Orphan Works – just search for “millions” in the pdf.
Google Donates $3 Million to Library of Congress (LOC press release)
A2IM Position on the Current Orphan Works Legislation in the United States
Orphan Works: A License To Infringe
Musicians Against Orphan Works Why We Fight