Orphan Works IPA Analysis

March 1, 2006 · 0 comments

The Illustrators Partnership would like to share the following with other groups. It was originally sent as an email to IPA members and other illustrators on Feb 22:
Proposed Legislation Could Orphan Copyrights
On January 23, 2006 the U.S. Copyright Office issued their Orphan Works Report, outlining their recommendations to Congress for changes to the 1976 Copyright Act. While we know the Copyright Office made a sincere effort to solve the problem of copyright availability for users, we believe these proposed changes will undermine copyright protections for artists.
The report defines an “orphan work” as any work where the author is unidentifiable or unlocatable, regardless of the age of the work. It extends to both published and unpublished works, and includes both U.S. and foreign works. At 127 pages, the report is too long to analyze in detail here, but you can access it at the Copyright Office website. For those who wish to cut to the chase, the explicit language for their proposed changes can be found on page 127.
To understand the effect these changes may have, consider what the 1976 Act currently guarantees to you. It guarantees that you have the exclusive right to authorize or withhold reproduction of your work and to create derivative works. It guarantees this from the moment you fix the work in a tangible form, and it guarantees this without imposing formalities such as a copyright mark or registration. The Berne Convention for the Protection of Literary and Artistic Works forbids such formalities as a condition on the enjoyment and exercise of copyright. The U.S. formally acceded to Berne in 1988.

Placing Relevant Information on Your Work
The legislation proposed by the Orphan Works Study would not officially return artists to pre-Berne status, but for practical purposes, it would have that effect. It would not require you to mark each picture with a copyright notice and your name. But failure to do so on your part (or your publishers’) could be used by infringers to justify their own use of your work. Here’s the relevant part of the Copyright Office’€™s explanation:
“For authors and copyright owners, marking copies of their works with identifying information is likely the most significant step they can take to avoid the work falling into the orphan works category. This is particularly true for works of visual art, like photographs and illustrations, that otherwise do not contain text or other information that a user can rely on to help determine the identity of the copyright owner. Nothing in the Office’€™s recommendation would make such markings mandatory…Nevertheless, the presence and quality of the information on particular copies will be a highly relevant fact as to whether a reasonable search will find the copyright owner.’€ (p. 9, emphasis added)
In other words, the “information” that has been placed on your work will be a “highly relevant fact” in determining – for legal purposes – whether a user has made a “reasonable search” to find you before he or she uses your work. But since the report doesn’€™t set objective standards for what constitutes a ‘€œreasonable search,’€ it paves the way for endless ambiguity. What do you do if a user infringes your work after what he regards as a reasonable effort to find you? What if someone simply uses your work on the grounds that you may not find out about it – and if you do, justifies his actions by citing the “fact” that your work lacked ‘€œrelevant information’?

No Penalties For Infringing Orphan Work
Those who have demanded this legislation have argued that users should not be subject to penalties for infringing orphan work. They say that the public should be encouraged to use this work and that penalties would discourage use. The Copyright Office has agreed:
“Our recommendation follows this suggestion by limiting the possible monetary relief in these cases to only ‘€˜reasonable compensation,’ which is intended to represent the amount the user would have paid to the owner had they engaged in negotiations before the infringing use commenced.'(p. 12)
In other words, if someone infringes your work because they couldn’t find you – and you come forward to claim authorship – this system would only require the infringer to pay you the fee they presume you would have “negotiated.’ Yet if someone has already published your work – and faces no risk for statutory damages, attorneys€™ fees and court costs – they’ll be in a better position than you to dictate what constitutes a ‘€œreasonable’€ fee. And unless you can work with the fee they offer, you’ll have no choice but to take the issue to court, knowing that the cost of litigation could well exceed whatever “reasonable compensation” the courts might determine.
By considering and rejecting remedies for infringement, the Copyright Office acknowledged the complaints by creators’ groups that individual authors generally lack the resources to police unauthorized usage:
“While corporate copyright owners were generally in favor of a reasonable compensation approach, individual authors like photographers, illustrators and graphic artists noted that under current conditions, obtaining a lawyer to even file an infringement case is prohibitively expensive, so much so that only where statutory damages are available is it possible to file a case. If compensation were limited to only a reasonable royalty, they fear that it will likewise be practically impossible even to recover that compensation given the cost of litigation.’ ( p. 117)
But while the Report expresses “sympathy” for this fact of life, it states that “[t]his problem . . . has existed for some time and goes beyond the orphan works situation, extending to all types of infringement of the works of individual authors . . . It is not, however, within the province of this study on orphan works.’ (p.114, emphasis added)
Yet if the problem is not within the province of the Orphan Works Study, we must introduce it into the coming debate over legislation. Otherwise, a law that exposes vast quantities of copyrighted work to potential abuse could make the existing bad situation worse, making payment for usage the option of last resort for any user who chooses to exploit this glaring loophole.

Are Registries a Solution?
The Orphan Works Report notes that many respondents to the Study proposed ‘€œregistries or other databases of owner or user information’ as a possible solution of tracking rightsholders. A publicly available visual artists registry would match unidentified art to an artist and/or the artist’s contact information. But creating a registry requires technology and staff unavailable to independent artists. Other countries protect their artists’ exclusive rights through the administration of collecting societies. The Orphan Works Report states that “such administrative mechanisms might ultimately be of great assistance in helping put owners and users of orphan works together”(p. 95), but says the Copyright Office lacks the resources to create and administer them:
€œ[W]e believe that registries are critically important, if not indispensable, to addressing the orphan works problem, as we explain above. It is our view that such registries are better developed in the private sector, and organically become part of the reasonable search by users by creating incentives for authors and owners to ensure that their information is included in the relevant databases.” (p.106, emphasis added)
But if Congress can’t allocate funds to create the kind of registry that Orphan Works legislation would make “indispensable,” Congress should not impose that burden on rightsholders as a condition of maintaining their copyrights. Especially since the effect of these changes would be retroactive, that is, affecting work created over the last 28 years, during which time artists did work with the expectation that it would be protected – whether marked and registered or not, for their lifetime plus 50 (now 70) years.

Specific Exemptions as a Solution
We believe most artists would agree with the Copyright Office that an orphan works problem exists. Any of us who have ever wanted to duplicate old family photos will understand how troublesome (even futile) it can be to try tracking down a long-lost photographer or other potential rights-holder. But if Congress concludes that legislation is necessary to solve problems like this, we urge them to craft specific, limited exemptions instead of sweeping legislation that shifts the burden of diligence from users to copyright holders.
A limited exemption could be crafted to solve family photo restoration and reproduction issues without otherwise gutting photographers’ copyrights. Usage for genealogy research is probably already covered by fair use, but could be specifically exempted if necessary. Limited exemptions could be designed for documentary filmmakers as well. Libraries and archives already have generous exemptions for their not-for-profit missions, but if their missions are changing to include for-profit ventures, they should abide by commercial standards for the usage of copyrighted material.

The Next Step
In conducting this study, the Copyright Office identified as the primary goal of Orphan Works legislation: “to make it more likely that a user can find the relevant owner in the first instance, and negotiate a voluntary agreement over permission and payment, if appropriate, for the intended use of the work.” (p. 8) Yet we’€™re afraid that this system as proposed will do little to ‘€œbring users and authors together.’€ In fact, it could well force authors into the ‘€œmarketplace’€ of the courts to attempt recovery of compensation after their work has been used and their copyrights compromised.
Last spring nearly 2,000 individual artists and 42 organizations joined us in opposing Orphan Works legislation. We thank all of you for your responses to our submission to the Study. Since then, we’€™ve had several opportunities to express our opposition directly to the Copyright Office. We participated in the government’s two-day Orphan Works roundtables last July 26 and 27, and at their invitation, we met individually with Copyright Office attorneys on November 17. Now we’ll need to rally again to see that the proposals in this study are not enacted into law. This will require a practical strategy and a concerted effort. We’ll keep you informed as this develops and we’ll let you know how you can help.
-Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership of America (IPA)

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