Orphan Works Act of 2008
It’s been a while since a bill in Congress has sparked as much panicked hand-wringing in the arts community as the Orphan Works Act of 2008 (pdf).
The Illustrators’ Partnership of America calls it “cultural theft on an unprecedented scale.”
You May Lose All the Rights to Every Piece of Art You Have Ever Created!… [T]he Orphan Works bill … affects every artist and photographer in the world…. [Y]ou are about to lose your copyright protection. Every one of you needs to stand up and be heard in order to protect what we have all created.
So just what is this terrible legislation that will punch your mother in the nose and drink the blood of your first born? Here’s a fairly straightforward description of the legislative intent from Arts Technica:
The “Orphan Works Act of 2008″ (HR 5889 and S 2913) attempts to create a system where new creators can use old works without fear of massive lawsuits, provided that a good faith effort has been made to find out if the work in question is copyrighted.
If the provisions in the bill are followed and a copyright holder does emerge later, the bill prevents the copyright owner from seeking the normal penalties for infringement. These can include massive statutory damages that need have no relation to any actual losses, and even the threat of such a lawsuit often leads creators to avoid using archival material in documentaries and other such works. Under the Orphan Works Act, a copyright holder can only claim “reasonable compensation,” which is defined as “the amount on which a willing buyer and willing seller in the positions of the infringer and the owner of the infringed copyright would have agreed with respect to the infringing use of the work immediately before the infringement began.”
To qualify for this protection, creators must perform (and document) their “good faith” search for the copyright owner. They must be able to show that they could not locate any owner. They must file a “Notice of Use” with the Copyright Office before using the orphan work. They must provide attribution about the original copyright owner, if they can find this information (imagine a publisher who owned the copyright in a book but went out of business thirty years ago). They must include a special “orphan works” symbol that will be determined later by the Register of Copyrights. If all of these prerequisites are met, the creator can use the work in question with confidence, knowing that he will only have to pay a reasonable license fee if the copyright owner does emerge.
The Copyright Office also has to certify databases that can aid in the search for “pictorial, graphic, and sculptural works that are subject to copyright protection.” While it won’t actually run such a database, it will make sure that private databases meet proper criteria and that they are able to do visual searches.
I’ll be honest, I haven’t yet decided whether I think the Orphan Works Act is good, bad, or neutral. But I have serious concerns about the overheated rhetoric, rife with factual inaccuracies, that I’m hearing on this topic.
Please, before you allow yourself to be worked into a frenzy and sign on to fight in a holy war, read the bill. It’s not long and, compared to most legislation I’ve read, it’s fairly easy to follow. Maybe you’ll come to the same conclusion as those folks above or maybe you’ll decide the bill is innocuous or even positive. Either way, hopefully you’ll discover that much of the shrillest critiques are based on “facts” that just aren’t in the bill. For example:
- Under no circumstances can you lose your copyright on a work because it is “orphaned”. You are always entitled to reasonable compensation for the use of your work, even if your copyright is infringed upon by someone who is protected under the Orphan Works Act.
- The bill does not propose any requirement that works be documented in paid registries. Registering your work would simply be one way to minimize the likelihood that a “reasonably diligent” would come up empty handed.
- Some folks are saying that the legislation is just a giant hand out to companies like Corbis or Getty, which would presumably establish commercial registries. That may be true, but only if those corporations can add real value to the process. After all, it would be trivial for a non-profit organization like Fractured Atlas or the Illustrators’ Partnership to set up a free registry for the artists in its constituency.
Again, I’m not saying that I support the Orphan Works Act. There are some legitimate problems with it that I haven’t seen anyone address, such as the extent to which it relies on internet-connected databases which aren’t universally accessible. But before we get our collective knickers in a twist, let’s all take a deep breath, read the bill, and then make an honest assessment of the dangers and opportunities it proposes.
Feel free to use the comments on this post as an opportunity to have at it!