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

Amendment to Copyright Modernization Act requires the Copyright Office to create a text-searchable database of visual works.

The Copyright Modernization Act was scheduled for mark-up today but has been delayed again, perhaps until next week.

In response to criticism from visual artists, Rep. Lamar Smith (R-Texas) has now introduced a “Manager’s Amendment” to the bill that would require the Copyright Office to create a text-searchable database of visual works.

The effective date is whenever the Copyright Office does it or 2011, whichever comes first. With all due respect, we suggest that Congress pass the “Manager’s Amendment” by itself and put the rest of the Orphan Works Act on hold.

Reason: a searchable database would allow users to source and access a vast number of rightsholders without compromising the protected work of artists who are simply hard to find — or whose authorship can’t be determined by a text-based search — or whose art was never registered in the first place (as the 1976 Copyright Act did not require it to be).

The “Manager’s Amendment” (without the Orphan Works Act) has several virtues lacking in the blunderbuss bill.

  1. It would do no harm.
  2. It’s doable, although it needs tweaking. (It should require the Copyright Office to include all works registered since 1976, not just future works registered electronically once the Copyright Office can do it.)
  3. It would serve as a model on which other incremental changes could be based.

In other words, as an isolated proposal, we think the “Manager’s Amendment” has tremendous merit, but attached to the Orphan Works Bill, it merely lessens the overall damage the bill would do.

Why the rush to pass this bill? No rights will be lost and no businesses damaged if it doesn’t pass, but there’ll be havoc in commercial markets if it does.

We believe the passage of the “Manager’s Amendment” in place of the Orphan Works Act, would be a significant Congressional achievement. Let the Copyright Office lead the way by making its own records more accessible to users. Once the database is in place, then re-consider the Orphan Works Act.

Brad Holland and Cynthia Turner
— For the Board of the Illustrator’s Partnership

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