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

First the good news. It appears that the Orphan Works bill won’t let someone infringe your work just by saying he couldn’t find copyright information on the work itself. He’ll have to say he’s also made a good faith effort to find you through other means. The bad news is you can either take his word that he’s done so or you can take him to Federal court.

We haven’t had time to get a professional analysis of the Orphan Works bill yet, but on first reading – and in spite of a few beneficial changes – it still appears to be not an orphan works bill at all, but a frontal assault on copyright, “the dawn of a new, user-focused era in copyright legislation” as one giddy legal scholar wrote yesterday.

The most striking aspect of the official bill remains its casual no-fault attitude toward infringement. The language treats copyright abuse as just another form of copyright usage:

“…the remedies for infringement shall be limited under subsection (b) if the infringer sustains the burden of proving, and the court finds, that—(A) before the infringing use of the work began, the infringer, a person acting on behalf of the infringer, or any person jointly and severally liable with the infringer for the infringement of the work— (i) performed and documented a reasonably diligent search in good faith to locate the owner of the infringed copyright; but (ii) was unable to locate the owner; and… [etc.]” (our emphasis).

Try substituting “thief” or “theft” for “infringer” and “infringement” and it’s clear what a stunning reversal of common sense this bill embodies toward the treatment of private property.

The second striking aspect is the bill’s unhealthy reliance on the courts to resolve the abuses the bill itself will generate. We make our living licensing the rights to our work. Our time is already consumed adjusting to short deadlines and shifting business conditions. We shouldn’t have to make traipsing to Federal court a routine part of our business experience just to get paid for the use of our work.

Then there’s the matter-of-fact assumption that good faith infringement can be easily and reliably established, either in or out of a courtroom. It can’t. Yet this bill will make it the touchstone for establishing whether someone has the unauthorized right to use our work.

With all due respect, this bill needs to be more than just changed. It needs to be opposed. Other countries are finding ways to solve the orphan works problem without a wholesale weakening of creators’ rights. Why can’t we?

-Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership

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

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