In Berne Convention, Copyright, Copyright Act, Orphan Works, TRIPS

by Catherine Twomey and Brad Holland

Source: Illustrators’ Partnership of America

Amendment May Orphan Creative Artists

New York — March 7, 2006 — Private property is up for grabs in an impending battle now looming before Congress. A proposed amendment to the 1976 Copyright Act could strip freelance artists of rights and income in an effort by government to make their work royalty-free for public and commercial use. Congressional hearings begin March 8.

On January 23, the U.S. Copyright Office proposed that Congress amend existing law to free up copyrighted work whenever the creator can’t be identified or located. Current law protects an author’s work upon execution without need for signatures, credit lines or copyright symbols. The “Orphan Works” exception would remove that protection by limiting penalties for infringement to “no-fault” awards. These would be determined by courts only if and when a copyright holder discovers her work has been infringed.

Museums, libraries, archives and foundations have asked for this amendment. Free Culture proponents say that current law prevents scholars and creators of “transformative” art from using other artists’ work in making their own. They propose that all works published without identifying information, or with that information removed, whether legally or not, should be designated “orphans,” free for public and private use. The amendment would also affect work retroactively.

Creative artists strongly oppose the amendment. They see it as an attempt by institutions and commercial interests to appropriate the work of others in the guise of serving the public interest. Medical illustrator Cynthia Turner compares it to last year’s controversial Supreme Court decision regarding eminent domain. She stresses that existing copyright law already affords scholars “fair use” of copyrighted material, and adds “this amendment is basically a license to infringe.”

Artist Brad Holland agrees. “Legal scholars and Free Culture advocates want to make the public a generous gift of other people’s work. First libraries will move in, then Google. The amendment would place an impossible burden on artists, because they’ll never have the resources to police infringement, which could occur anytime, anywhere in the world. And I don’t see how Congress can pass legislation that places an impossible burden on property owners as a condition of protecting their property.”

In 2005, 42 international arts organizations representing tens of thousands of artists, joined the Illustrators’ Partnership of America in asking the Copyright Office to maintain current copyright protections. The Illustrators’ Partnership opposes the Orphan Works amendment.


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