The architects of the Orphan Works Act have already placed testaments to the bill on their websites:
They say this “landmark intellectual property bill” will “unlock proverbial attics of copyrighted works” whose owners can’t be found. Is that really what all the fuss has been about?
No. If that were the case, the problems could be solved with a modest expansion of Fair Use. It’s not proverbial closets we fear seeing unlocked. It’s our commercial inventories, which would be exposed to potential infringement.
And while one Senator pointedly writes that the bill “does not dramatically restructure copyright law” (emphasis added), he’s right: it doesn’t “restructure” it. It merely redefines an orphaned work so broadly that it would let users infringe millions of works as orphans on the premise that some might be.
And why, if the bill is only meant to benefit libraries and museums, have the doors been opened wide for commercial usage?
A Fundamental Change to Copyright Law
For us, the saddest of these postings is on the Copyright Office website itself. http://www.copyright.gov/orphan/ There, Marybeth Peters, the Register of Copyrights explains that this bill is necessary because the U.S., in trying to harmonize our law with international agreements, has created too many orphans.
But that’s not the sad part. There are orphans. She’s entitled to her belief. And as Register of Copyrights, she’s entitled to lobby for a change in the law. But what’s sad is that the Register, who we’ve respected for years as an advocate for creators rights, has chosen to justify this legislative scheme by mischaracterizing the honest objections that creators have raised in good faith, again and again.
Here’s how she summarizes the objections of the hundreds of thousands of artists, writers, photographers and musicians who oppose this bill:
“Some critics [she writes] believe that the legislation is unfair because it will deprive copyright owners of injunctive relief, statutory damages, and actual damages. I do not agree.”
Well, those are all real issues, but they’ve never been our focus. We’ve made our case clearly, simply and often.
Our objection goes to the heart of the matter. Here it is, as one of us expressed it in his opening statement at the Small Business Administration Roundtable, August 8:
“The bill’s sponsors say it’s merely a small adjustment to copyright law. In fact, its logic
reverses copyright law. It presumes that the public is entitled to use your work as a primary right and that it’s your obligation to make your work available. If this bill passes, in the United States, copyright will no longer be the exclusive right of the copyright holder.“
– From “Orphan Works: A Hobson’s Choice for Artists,” by Brad Holland August 8 2008
And in case the point needed elaboration:
“This exclusive right matters to artists for three reasons:
· Creative control: No one can change your work without your permission;
· Ownership: No one can use your work without your permission;
· Value: In the marketplace, your ability to sell exclusive rights to a client triples the value of your work.
The Orphan Works Act passed by the Senate Friday explicitly voids that exclusive right as expressed in Article 9 of the Berne Copyright Convention:
(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.
(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.
There can be no responsible argument that the Orphan Works Act is consistent with Article 9 of Berne. None.
Simple reason: the Orphan Works Act does not limit exemptions to an author’s exclusive right to “certain special cases.” Case closed.
There are many other reasons to object to this terrible bill: it violates the entirety of Article 9. But we only need to make this single point to show that it’s a radically new copyright law.
Hiding the Rabbit
The key to the Congressional magic act has been to hide an anti-copyright rabbit in an Orphan Works hat while misdirecting attention to a tedious debate about “reasonably diligent searches,” injunctive relief and statutory damages.
Meanwhile the secret of the trick has been simple: redefine an orphaned work as “a work by an unlocatable author.”
This new definition would permit any person to infringe any work by any artist at any time for any reason – no matter how commercial – so long as the infringer found the author sufficiently hard to find.
Since everybody can be hard for somebody to find, this voids a rights holder’s exclusive right to his own property. It defines the public’s right to use private property as a default position, available to anyone whenever the property owner fails to make himself sufficiently available.
This is a new definition of copyright law.
The headline on the Copyright Office website should read:
In the United States, Copyright Will No Longer Be the Exclusive Right of the Copyright Holder.
This headline would at least have the virtue of candor.
On March 13, the Register of Copyrights testified before the House IP Subcommittee. On page 1 of her testimony she said:
“Every country has orphan works and I believe that, sooner or later, every country will be motivated to consider a solution. The solution proposed by the Copyright Office is a workable one and will be of interest to other countries.”
You can bet it will be of interest to other countries, because the copyrights of other countries can now be orphans in the U.S. too. The Copyright Office and the Senate have thrown down a gauntlet to the world.
Write your congressional representatives today and tell them not to follow.
-Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership
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