Yesterday the House subcommittee on Intellectual Property held their first hearing on new Orphan Works legislation. Note the title:

“Hearing on Promoting the Use of Orphan Works: Balancing the Interests of Copyright Owners and Users”
http://judiciary.house.gov/oversight.aspx?ID=427

Balance, however doesn’t seem to be part of the Orphan Works juggernaut. Indeed, after this hearing, we can no longer assume that the U.S. Copyright Office is an advocate for the protection of creators’ rights. As they wrote on page 14 of their original Orphan Works Report:

“If our recommendation resolves users’ concerns in a satisfactory way, it will likely be a comprehensive solution to the orphan works situation.” (our emphasis)

But how can any copyright law be “comprehensive” if it makes millions of copyrights, no matter how valuable, available to users, no matter how worthy, under a system that would introduce permanent uncertainty into the business lives of creators?

Private Sector Registries
Since the last bill died in committee in 2006, the advocates of this legislation have promoted the creation of private commercial registries. On January 29, 2007, a lead attorney for the Copyright Office warned us that under their plan any work not registered with a private sector registry would be a potential orphan from the moment it was created.

This means you would not only have to register your published work, but also:

— Every sketch or note on every page of every sketchbook;
— Every sketch you send to every client;
— Every photograph you take anywhere, anytime, including family photos, home videos, etc.;
— Every letter, email, etc., professional, personal or private.

This Would End Passive Copyright Protection: Under existing law the total creative output of any “creator” receives passive copyright protection from the moment you create it. This covers everything from the published work of professional artists to the unpublished diaries, letters and family photos of the average citizen.

But under the Orphan Works proposal, none of this material would be covered unless the creator took active steps to register and maintain coverage with a commercial registry. Failure to do so would “signal” to infringers that you have no interest in protecting the work.

The Registration Paradox:
By conceding that their proposals would make potential orphans of any unregistered works, the Copyright Office proposals would lead to a registration paradox: In order to “protect” work from exposure to infringement, creators would have to expose it on a publicly searchable registry. This would:

— Expose creative work to plagiarists and derivative abusers;
— Expose trade secrets and unused sketches to competitors;
Expose unpublished and private correspondence to the public on the Orwellian premise that you must expose it to “protect” it.

Yet registries will not be able to monitor infringements nor enforce copyright compliance. Even after you’ve shelled out “protection money” to a commercial registry to register hundreds of thousands of works, you still won’t be protected. A registry would do nothing more than give you a piece of paper. You would still have to monitor infringements – which can occur anytime anywhere in the world; then embark on an uncertain quest to find the infringer, file a case in Federal court, then prove that the infringer has removed your name or other identifying information from your work. Meanwhile all the infringer will have to do is say there was no such information on the work when he found it and assert an orphan works defense. This will be the end result of trying to “resolve the users’ concerns” at the expense of time-tested copyright law.

Coerced registration violates the spirit and letter of international copyright law and copyright-related treaties. And because this bill would effectively eliminate the passive copyright protection afforded personal correspondence, family photos, etc. it would tear one more slender thread of privacy protection from the fabric of fundamental rights we currently take for granted.

We urge Congress to carefully reconsider the unintended consequences of this radical copyright proposal.

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

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