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

It’s transparently irresponsible to legalize the abuse of private property on the premise that you might create some undefined “remedies” to handle the abuse.

The new Copyright Modernization Act sugarcoats the Orphan Works bill by proposing to consider “Remedies for Small Copyright Claims.” We’ve already noted the problems this raises in our March 2 post, “No Time to Go Wobbly”:
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00182

and in our testimony before the House IP Subcommittee March 29:

Written Statement:
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00202
Webcast of testimony:
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00201

At that hearing, we were asked to testify about “small dollar” infringement remedies without mentioning Orphan Works – as if the subject was separate from the OW bill. We insisted that the two proposals were linked and testified to that effect. Now it’s clear they are linked: see page 95-96 of The Copyright Modernization Act: Sec. 204. Inquiry on Remedies for Small Copyright Claims.

Section 204 requires the Copyright Office to conduct a year-long feasibility study, to begin “not later than 1 year after the date of the enactment of this Act,” and to submit to Congress “such recommendations [for copyright Small Claims remedies] that the Register [of Copyrights] considers appropriate.”

In other words, pass the bill first, then conduct the study.

Let’s consider a possible scenario:

  • The Copyright Modernization Act is rammed through. Congress acknowledges that infringement cases will multiply.
  • But not to worry, they’re considering “remedies.”
  • Once the bill is passed, the Copyright Office begins its study.
  • A year later, they conclude it’s not economically feasible to create an entirely new branch of the federal judiciary system to handle small copyright disputes.
  • Enjoy your “Modern Copyright” law, folks.

Since Congress concedes that an Orphan works bill will increase infringement litigation, lawmakers should delay any further discussion of this legislation until after the feasibility study has been conducted and its recommendations budgeted and implemented. It’s transparently irresponsible to legalize the abuse of private property on the premise that you might create some undefined “remedies” to handle the abuse.

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

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