In Artists Rights Society, Berne Convention, H.R. 5889, Jane C. Ginsburg, OpenCongress, Orphan Works, S. 2913, Small Business Administration, Telerama, TRIPS

With Congress back in session this week, Orphan Works rumors are back too.
According to some sources, deals have been made to pass the bills quickly. According to others, the bills have stalled for this session. Here’s what we know, independent of conflicting sources:

SEPT 6 OpenCongress Lists “8 Controversial Bills That Congress Still May Pass”
In Congress Gossip, by Donny Shaw, the article notes that the Orphan Works Bills “have been called out by concerned citizens… but are in a good position to quickly become law” in the next several weeks. The author quotes artist Brad Holland and attorney Larry Lessig in opposition to the legislation, and ends with this quote from “an anonymous OpenCongress user”:

“Isn’t it funny how music is getting huge, sledgehammer like protection in HR 4279 and visual art is getting devalued and made worthless by this bill, HR 5889? Music must just be soo much more valuable. It’s all about the corporate interests. Artists need to band together for our own protection and fight this dangerous bill. I’m an art student, and while I will never stop making art I’m worried I’ll be unable to make a living at it. It’s never been easy to be an artist without this kind of stuff coming along and making it impossible for us.”

Read the full article here:

SEPT 10 Authors Groups Submit Opposition Papers to Small Business Administration
The Illustrators’ Partnership, Artists Rights Society and Advertising Photographers of America have submitted over 60 papers and articles to the Office of Advocacy of the US Small Business Administration. These written statements were filed on behalf of attorneys, illustrators, designers, fine artists, photographers, songwriters, musicians, writers, members of the art licensing community and other small business owners. All are opposed to the bill.

These papers are the written statements submitted in conjunction with the Orphan Works Roundtable, conducted by the SBA August 8, 2008 at the Salmagundi Club in New York City. The package will be distributed to lawmakers in both houses of Congress.

The webcast of the SBA Roundtable is available here:

AUGUST 30 Copyright Expert Releases Analysis of Orphan Works Bills
Leading copyright expert Jane C. Ginsburg of the Columbia Law School has published a major Orphan Works piece, the first of a two part article: Recent Developments in US Copyright Law: Part I – “Orphan” Works.

Professor Ginsburg’s scholarly paper raises several critical questions about the current legislation. Among various points, she notes that certain provisions appear to violate Article 10.1 of the Berne Convention, which prohibits prejudicial exceptions to an author’s exclusive right of copyright. She states that the preclusion of injunctive relief with respect to derivative works would appear to force authors to tolerate “even derivative uses they find offensive or that distort their works,” and she adds that this “has economic consequences as well,” depriving the author of the right “to grant exclusive derivative work rights to a third party. The bill thus potentially devalues the derivative work right.”

“The US proposals,” she writes, “may run afoul of EU restrictions” for various reasons, and adds: “[t]here may also be Berne- compatibility problems regarding the inclusion of non-divulged [unpublished] works in the proposed orphan works regime…[T]he bills should exclude “orphan works” which have never been disclosed to the public, and whose authors are still living.”

“The ‘progress of knowledge’ to which US copyright aspires,” she writes, “is achieved not only by putting works into circulation, but also by fostering conditions conducive to creativity.”

The full paper can be accessed here:

SEPT 6 French Magazine Telerama Sounds Orphan Works Warning
Main basse sur les images “orphelines” by Olivier Pascal-Moussellard. In this article, initiated by artist Etienne Delessert, the popular French magazine notes that 60 organizations oppose the controversial US bill and warns that it threatens to harm international artists as well “if they don’t wake up.” In opposition to the bill, it quotes Brad Holland and Dr. Ted Feder, President of the Artists Rights Society, which represents the estates of Matisse, Picasso, Chagall and tens of thousands of others. It also quotes Stefan Biberfeld, legal director of Corbis Europe, noting that stock agencies such as Getty and Corbis will benefit from passage of the legislation because it will allow them to market orphaned work without fear of being “intimidated” by copyright owners. The article is in French.

LE FIL ARTS ET SCÈNES– Menace sur les droits d’auteur : une loi américaine veut rendre libre l’usage des photos, tableaux ou dessins dont on ne connaît pas l’auteur. A qui profite-t-elle ?”

“Simple question de bon sens, disent les uns. Hold-up légal, rétorquent les autres. Légal, car perpétré par les députés et sénateurs américains, téléguidés en coulisse par les géants d’Internet. L’objet du casse ? Les droits d’auteur des peintres, dessinateurs et photographes américains, mais peut-être aussi ceux de leurs collègues étrangers s’ils ne se réveillent pas.”

Translation: “Threat to artists’ copyrights: A U.S. law would free up the exploitation of photos, paintings, and illustrations whose creators cannot be located. Who profits?

Some maintain that “It’s a simple question of common sense”. Others retort that “It’s legal highway robbery.” Legal, because the law is being perpetrated by U.S. Congressmen and Senators remotely controlled by internet giants operating behind the scenes. The target of this break-in: the copyrights of American painters, photographers and illustrators, but perhaps also of their foreign colleagues if they don’t wake up in time.”

Read the full article:,33013.php

Take Action: Don’t Let Congress Orphan Our Work
E-mail your Senators and Representatives with one click. Go to:
This Capwiz site is open to professional creators and any member of the image-making public. Sample letters have been provided. International artists will find a special link, with a sample letter and instructions as to whom to write. Two minutes is all it takes to write Congress and defend full copyright protection for creators.

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

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