http://www.myartspace.com/blog/2008/08/art-space-opinions-public-knowledge-and.html

Keep in mind that’s it’s to the person benefit to NOT find the owner.

“Good faith” my sweet aunt petunia’s behind…

I’ve been trying to get a commentary on it going at my blog:
http://www.designershaveissues.blogspot.com.

I address the six misconceptions article by Meredith and some other arguments people have favoring this bill.

I believe I have researched this well and I hope to hear input from others.

As Google�??s attorney, Alexander MacGilivrey put it in his testimony at the Copyright Office:

�??I would encourage the Copyright Office to consider not just the very, very small scale, the one user who wants to make use of the work, but also the very, very large scale and talking in the millions of works.�?�

Don’t forget–the Senate version of the bill is called the “Shawn Bentley Orphan Works Act”–Shawn Bentley was a lobbyist for AOL.

since penelope posted this topic as a question, i guess the simplified question is this: do you think copyright laws are too strict or do you think copyright laws aren’t strict enough?

let your answer determine your course of action.

The reason so many image creators are upset by this proposed bill is because it threatens our livelihood at the very core. It will work retrospectively on all our existing unregistered work, that we felt we already had copyright on.

The onus will be for us to pay to register every image, and to personally follow up on infringed uses, which will cost time and money we do not have. We are not a rich profession with time to spare archiving images and writing our names on everything every day (only to find the name was removed when the image was printed making it untraceable again – commonly done with images).

Yes, we would like important archive images to be made available for use by honest bodies who can’t trace the copyright owners, but this is not the way to enable that act. There is already ‘fair use’ in place, and maybe that needs to be reviewed with a fee being paid into a copyright body for such images.

By making every image copyright free unless traceable, you endanger the whole arts business.

And using your story about a photo…”about the documentary filmmaker who discovers that quintessential photo in a shoebox full of pics at a garage sale? The one and only photo that proves the point or perfectly documents a time and place, but can�??t be used because even after an exhaustive search, the owner can�??t be found. ” This is too a simple idea, and to be honest, I would not want that photo made available for easy use by the documentary maker without provenance.
Imagine now instead… a nude photo taken in a moment of student pranks many years ago, of a now important person… would you still feel that photo should be freely used without permission of the originator? Would the documentary maker ask the person in the photo who it belongs to as part of their ‘diligent search’?
This law which seemingly opens images up to innocent use, could also effect what would today be considered abuse.

There are many aspects to copyright that give protection in many ways, whilst also hindering use of some images. We need to free up legitimate use of untraceable copyright images perhaps, but not at the expense of losing copyright protection for all who have not marked or registered their images.

Okay, now to try to address some of the specific arguments raised above:

> 1. [The new 2008 legislation] changes the 1976 U.S. Copyright Act (enacted in 1978), and makes it virtually impossible for artists to protect their work. It basically allows anyone to use a design without the copyright holder�??s permission.

It’s hard to show how something *doesn’t* do something. How do copyright owners protect their works today under current copyright law, especially visual artists? If someone uses your work without permission, then you contact them and ask them to stop and/or compensate you. Or you can sue them for infringement and if you registered you may be able to get some statutory damages.

The major way that things might differ under orphan works is that you always have responsible users who want to find you. Remember we’re talking about people who are going to use this orphan works limitation–they will have to have done a search for you–which is way more effort than low-life infringers will have done. In most cases, those orphan works users are going to find you after a search. In the rare case that the user doesn’t find the owner and the rarer case that that owner surfaces, the law requires the owner will be compensated. If the user acts in bad faith, or doesn’t do a reasonable search, they can be held liable for statutory damages (again, presuming that the owner registered their works, which is required under current copyright law and doesn’t change under any orphan works policy).

The key difference is that users that put diligent effort into searches and negotiate in good faith are shielded from statutory damages. Still, it’s not true that orphan works policy allows anyone to use a design without the owners permission.

> 2. It requires artists to attempt to protect their work by registering it with a digital data base system (presumably for a fee, in addition to the copyright filing fee)�??when no such system exists!

Nope. This outrightly false. No where in either of these bills is an owner required to do anything with their copyrighted works–no submission to any digital database service, no additional payments, no nothing.

Like I noted in my previous comment, a big part of visual artists’ problem being found is the lack of an effective search for the Copyright Registry. If you’ve never searched for a particular work in the Registry online, you’ve got to try it. Go ahead, I’ll wait:

http://cocatalog.loc.gov/

It’s archaic, isn’t it? Only text-based searches and results. No images, poor descriptions and key words. It’s a mess, and the Copyright Office in their orphan works study and numerous testimonials have admitted it. But the Office claims to not have the expertise nor the funds to create something useful and up-to-date. This doesn’t help visual artists to be found. So, we suggested that in lieu of the Copyright Office, that the market could pick up the slack. There’s lots of technologies out there on the web that can store images (see sites like Mira.com or Flickr.com) and others that allow you to comparatively search images (take a look at Like.com). Modern technologies could dramatically aid the problem of owners becoming disassociated with their works, but they’re not being used, not by the Copyright Office and rarely by visual artists. So, we suggested that the Copyright Office at least inform the public what market based services could provide useful registry-like services.

**That’s it.** Look at the legislation yourself. Owners aren’t required to do anything. There’s no ramification if a user searches one of these services and cannot find an owner because they didn’t sign up. These services don’t legally replace the Copyright Registry in any way. The legislation only asks the Copyright Office to make a list of services that meet minimum requirements, none of which require an owner to do anything. Period.

My personal hope is that visual artists and even musicians would take advantage of new technologies that could dramatically ease searching for and identifying their works. If the arguments above have you concerned about cost, think about this–a year’s subscription to Flickr.com (which allows for **unlimited image uploads and storage** and is easily searchable) is almost half the cost of **a single copyright registration** at the Copyright Office which is uselessly searchable. Regardless, this legislation doesn’t require artists to do anything. And just because a user can’t find an artist’s work through one of these services doesn’t allow an orphan works user to use your work.

> 3. It eliminates statutory damages wherever an infringer can successfully claim an orphan works defense, thus eliminating the only tool the law provides to prevent deliberate infringement.

I’ve said it already that this is the goal of orphan works, to limit statutory damages in cases where users searched for the owner but came up dry. But the law does require that the owner is compensated in the slim chance that an owner, who was diligently searched for, surfaces. If a user negotiates in bad faith–you’re back to statutory damages. If an owner doesn’t diligently search–back to statutory damages.

I also want to note that if an owner sues a user for not putting in diligent effort into their search, that there are numerous provisions to help the owner in the court proceeding: 1. that the user has to state up-front that they’re intending to use the orphan works limitation; 2. that they have to submit themselves to the jurisdiction of a US district court; 3. that they have to spell out and document the search that they did up front. All of these will dramatically make it easier for an owner and a court to get to the bottom of the issue, even easier than in a traditional copyright infringement case. If anything, owners should find themselves wanting every infringer to claim that they are orphan works user because it makes it easier for the owners to pursue court claims.

> 4. It allows for an infringer to create�??and copyright�??a derivative work from the original design.

This is correct. It’s on page 13, line 9 of the Senate Bill. How else could a documentary filmmaker use an orphaned photo in their movie without the documentary movie being a derivative work of the photo? Still, just like in all the other orphan works cases, that documentary filmmaker would have to compensate the owner if she surfaced. However…

> Under the proposed new bills, since the entirety of an infringed work can be included in a derivative use, then the copyright of the derivative will amount to a copyright of the original.

Nope, this is not true. Yes, a derivative is based off the original, but that doesn’t mean the user (who is also the owner of the derivative) somehow takes over the copyright of the original, nor does it mean that the user could claim any additional rights from the original work. It’s legally wrong, regardless of whether we’re talking plain-old copyright law or orphan works policy.

I think those are the key arguments and points I wanted to make. It’s late here and I really hope I didn’t misstate anything–if I did, I will gladly admit that I’m wrong. Sorry for the lengthy post for those who actually read through it. I’m sure my arguments will stir up discussion and I hope to participate if you’re interested. Thanks for your time.

I was directed to your site by someone who reads it and suggested I leave a comment. My guess is that I’m sure to draw a lot of negative comments, and that’s okay. For those who are interested in reading my comments, I just wanted to give a different point-of-view, and maybe even have some healthy back-and-forth discussion. Let the commenting begin!

I work for a public interest group called Public Knowledge, and yes, we generally support orphan works policy. You can find our site here:

http://www.publicknowledge.org

our general stance and brief history of orphan works here:

http://www.publicknowledge.org/issues/ow

and for those who want to dive right-in, our take on the new bills can be found here:

http://www.publicknowledge.org/node/1537

I also link to the legislation in that post above, if you’re so inclined you can read it for yourself (each bill is only about 20 pages and might be worth your time–start with the Senate one as the House Bill builds off of it).

I understand that there is a lot of passion in this debate because people rely on their creative works for their livelihoods, and the perception of this policy is that one way or another, rights are being taken or diminished in some way. In the visual arts community, there’s a feeling of injustice and that someone is getting away with something. You have no reason to believe me, so at least up front, I’m not going to bother shouting that that’s not true. Instead, I’d prefer to go through what orphan works is supposed to be about and then try to parse the arguments listed above by ArtSweet and try to address each as best as I can.

Let me start with the basic premises for orphan works. There are a number of groups: independent and documentary film makers, libraries, archives, museums, and public television stations that came to Congress with a problem that they’ve experienced. They have a copyrighted work in their hands that they would like to put in a film, in an exhibit or otherwise expose it. They want to ask the owner permission or pay to a license, but no matter how how much time and money they put into a search, the owner cannot be found. Copyright law stops the use of the work because if they did use it, they risk extremely high copyright infringement liability–potentially $150,000 per work. This means that literally millions of works go unused and unexposed (remember from the comments above that simply expressing your idea in a “tangible medium” gets you a copyright, regardless of whether you formally register it).

Think how many casual snap-shots you alone may have taken in your life that have little or no identifying information on them. You may say, well, that’s fine because I don’t want any of my images spread around. But what about the documentary filmmaker who discovers that quintessential photo in a shoebox full of pics at a garage sale? The one and only photo that proves the point or perfectly documents a time and place, but can’t be used because even after an exhaustive search, the owner can’t be found.

The Copyright Office studied the problem for a year, listened to everyone interested (including many of the organizations you may belong to) and developed a 128 page report outlining the problem of “orphan works.” The study can be found here:

The Copyright Office said that there was a problem and sited some examples that created the problems: for those works who’s owners had died without heirs, for owners that were companies that went out of business, for owners who transferred their rights but no one recorded any transfer. Compounding the problem was the Copyright Registry itself because it’s not easily searchable (it only provides test searches and text results–how many records would get returned with a search for “Statue of Liberty” and and how could you possibly tell them apart without seeing the images?).

The Copyright Office proposed some model legislation, and here were the basic rules:

* If a user found a work and wanted to use it, they had to search for the owner to ask permission.

* If after a diligent search the user couldn’t find the owner, the user could use the work without having the high copyright liability looming over their heads.

* In the unlikely case that an owner surfaces, the user would compensate the owner for the use.

* If an owner finds that a user didn’t do a diligent search, that user will be on the hook for damages.

The current legislation is built from these basic rules, but goes a long way to address the concerns of owners who participated in the roundtable discussions and three Congressional hearings.

I’ll start going through the specific arguments raised above in ArtSweet’s comment next. Please feel free to leave a comment.