In Berne Convention, Copyright, Orphan Works, TRIPS

Congress is scheduled to commence Orphan Works hearings the first week in March.

They hope to pass legislation before the end of the year. According to a source on the committee, this proposal is being fast-tracked because lawmakers think it has wide-spread support within the creative community. We need to disabuse them of this notion.

The spin that’s being put on this legislation is shrewd. Special interest groups have re-defined copyright users as “creators” of “transformative works.” They’re trying to persuade lawmakers that these “creators” are being hampered because of obsolete protections on work which has “little or no commercial value.” Yet the omnibus measures proposed in this Report would affect any work – old or new —that’s been published without identifying information. This would apply disproportionately to illustrations and photographs. We need to make it clear to Congressmen that these interest groups do not speak for real creators and that our work has significant commercial value.

Orphan Works legislation would be retroactive: This means that all the work you’ve done during the last 28 years could fall into the Orphan Works category if it was ever published without “relevant information” on it, was improperly credited or had been re-published by others without credit. In other words, it would take only one copy of any picture you’ve ever done — published without “identifying information” on it – or with that information removed by others — to justify an infringer’s claim that he was unable to locate the author.

Disputes over infringement would have to be settled in court. (And remember, copyright law is a Federal law, which means Federal court.) The worst thing that could happen to an infringer (if found guilty) is that he would have to pay you what he would have paid you in the first place. For 28 years (since the 1976 Copyright Act went into effect), you’ve been told that your work was protected “from the moment you put pen to paper.” No more. And artists who for 28 years produced work with the confidence that it was protected will find that the promise has been repealed. In effect, you could now be penalized for having believed what the government told you for the last three decades. This is very bad legislation.

The plot in a nutshell. It’s not an accident that this is happening now. Free Culture advocates such as Creative Commons have been arguing that the US should lead the way in re-imposing copyright “formalities” such as marking and registration. This would aid the spread of “free culture” because most artists would fail to mark and register their work (or marks could be removed). This would make a vast number of illustrations and photographs available for anyone to use or for companies like Google to sell access to.

Unfortunately for the free culturists, the US can’t re-impose formalities without violating or withdrawing from the international Berne Convention, which forbids formalities. And if the US did opt out of Berne, our country would effectively become a copyright outlaw. That would hurt American trade.

So the Copyright Office has crafted their orphan works proposal as a “limitation on remedies.” This would not re-impose formalities. But it would remove or emasculate penalties for infringement, potentially in any case where an illustration or photograph was published without “relevant information” on the picture itself. In effect, this would force artists —as a hedge against infringement — to re-impose on themselves the “formalities” the government can’t. Any artist who didn’t mark his work would expose it to no-fault infringement – a very clever way to re-impose formalities without actually doing so.

Remember, this is all being done in the name of promoting creativity by artists. That’s why we, as artists, have to speak up. We have to say that the Free Culture movement and the creative wannabes do not represent the true creative community. We have to say that this legislation would do great harm to our ability to create and make a living from our work.

What you can do. In their effort to speed this legislation through Congress, the plan’s shepherds are severely limiting testimony for and against it. That’s why your letters are important.

Write to the senators and congresspersons who will be voting on this legislation, and do it as soon as possible. Express yourselves directly and frankly. You don’t have to write a complicated letter, but it’s important that you make certain points:

-Make it clear that you’re an artist and that you believe your small business will be endangered by placing limitations on remedies for infringement.

-Make it clear that you will never have the resources to police infringement of your work – which could occur at any time anywhere in the world.

-Make it clear that your work could be orphaned by others, no matter how diligently you do the right things to protect it.

-Make it clear that your work has significant commercial value.

For artists, this legislation would be a major revision of copyright law. In effect, a repeal of the 1976 Act. The Orphan Works Report calls for a 10 year “sunset provision,” which means that the legislation will be subject to reevaluation in 10 years. But if your copyrights have been laundered into the public domain during that decade, they’ll be lost to you for good as surely as the income that will be lost with them.

We can’t wait until this law “sunsets” before having a chance to express ourselves on it. Please write as soon as you can.

— Brad Holland for the Board of the Illustrators’ Partnership of America

This may be republished, posted or forwarded in its entirety to any interested party.

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