I've been hearing about this bill for few months and, understandably, there's a lot of controversy over whether or not this is potentially harmful to all visual artists. I've been following along with both sides of the debate but hadn't heard much for a while, until yesterday when I saw an article from the Animation Guild which I thought made a great case against the bill. It's from the July, 2008 issue of the Animation Guild newsletter and I've copied it into the body of the journal.
Here's a video on YouTube you can watch that describes the bill
[link]This blog
[link] addresses some concerns and attempts to clear up some supposed misconceptions regarding the bill, saying it won't be detrimental to artists. Take a look at both, do your own research, make up your mind. The way I look at this, it could affect your work so you should know as much as you can about it.
Q: What is the Orphans Work Act?A: A proposed amendment to copyright law that would impose a radically new business model on the licensing of copyrighted work.
Q: How would it do that?A: It would force all creators to digitize their life's work and hand it over to privately-owned commercial databases or see it exposed to widespread infringement by anyone, for any purpose, however commercial or distasteful.
Q: How would it hurt me if I didn't register my work?A: The bill would let infringers rely on for-profit registries to search for your work. If your work is not in the databases, it's a potential "orphan."
Q: What about my unpublished work?A: The bill would apply to any work, from professional paintings to family snapshots, home videos, ect., including published and unpublished work and any work ever placed on the internet.
Q: How would these databases work?A: No one has yet unveiled a business plan, but we suspect they'd operate like stock houses, promoting themselves as one-stop shopping centers for licensing art. If you've registered your work with them, they'll probably charge you maintenance fees and commissions for clearing your work. If you're a publisher or art director, they'll probably charge you search fees. If you're an infringer, they'll probably charge you a search fee and issue orphan certificates for any unregistered work you'd like to infringe. We assume different registries may have different terms, and any start-up terms will of course be subject to change.
Q: How will the bill affect the market for commissioned work?A: It will be a gold mine for opportunists, favoring giant image banks over working artists. Some companies will probably sell access to orphans as royalty-free work - or they'll harvest orphans and bundle them for sale as clip art. Other companies can harvest orphans, alter them slightly to make "derivative works" and register the derivatives as their own copyrighted product. Freelancers would then be forced to compete against their own lost art - and that of their colleagues - for the new commissions they need to make a living.
Q: But the bill's sponsors say the bill is just a small adjustment to copyright law.A: No, it's actually a reversal of copyright law. It presumes that the public is entitled to use your work as a primary right and that it's your legal obligation to make your work available.
Q: But won't that let artists consult the archive to see if their work has been infringed?A: No, as currently written, the Notice of Use is a
dark archive, which means you won't have access to it. If someone infringes your work and has filed a Notice of Use, you wouldn't know about it.
Q: Then how would I know if my work is in the Dark Archive?A: You wouldn't, unless a.) you discover you've been infringed: b.)you sue the infringer in federal court: c.) the infringer asserts an Orphan Works defense. Then you can file a request to see if the infringer has filed a Notice of Use to infringe your work.
Q: Then what good does it do me for the infringer to file a Notice of Use?A: It's of no productive value to you at all unless you go to court. If the Notice of Use helps anyone, it actually helps the infringer: it lets him prove in court that he followed the prescribed protocol to "legally" infringe your work.
Q: The bill's sponsors say the House version includes specific instructions on the requirements for diligent searches.A: No, read the bill. It's full of ambiguous terms like "reasonable" and "diligent" that can only be decided by courts on a case-by-case basis. That could take a decade of expensive lawsuits and appeals. How many millions of copyrights will be orphaned before we learn how the courts ultimately define these vague terms?
Q: What can we do now to oppose this legislations?A:If you're opposed to the bill in it's current form, contact members of the full House Judiciary Committee. Ask them to adopt our amendments limiting the scope of the bill to affect only true orphaned work.
Go to the Orphan Works Opposition website at
[link] to find a short basic letter which you may use as a template.
- Brad Holland and Cynthia Turner, for the Illustrator's Partnership