Yes, there’s more! This is a critical issue, and thank you EP for letting the IPA freely post these messages. There are thousands of photographers and artists receiving this. We need to flood letters to Congress so they “get it”.
FROM THE ILLUSTRATORSâ PARTNERSHIP
The Orphan Works Express
Congress is scheduled to commence Orphan Works hearings the first week in March. They hope to pass legislation before the end of the year. According to a source on the committee, this proposal is being fast-tracked because lawmakers think it has wide-spread support within the creative community. We need to disabuse them of this notion.
The spin thatâs being put on this legislation is shrewd. Special interest groups have re-defined copyright users as âcreatorsâ of âtransformative works.â They’re trying to persuade lawmakers that these âcreatorsâ – and therefore, creators in general – are being hampered because of obsolete protections on work which has âlittle or no commercial value.â Yet the omnibus measures proposed in this Report would affect any work – old or new âthatâs been published without identifying information. This would apply disproportionately to illustrations and photographs. We need to make it clear to congressmen that these interest groups do not speak for real creators and that our work has significant commercial value.
Orphan Works legislation would be retroactive. This means that all the work youâve done during the last 28 years could fall into the Orphan Works category if it was ever published without ârelevant informationâ on it, was improperly credited or had been re-published by others without credit. In other words, it would take only one copy of any picture youâve ever done â published without âidentifying informationâ on it – or with that information removed by others â to justify an infringerâs claim that he was unable to locate the author. The same thing would be true, of course, for future work.
Disputes over infringement would have to be settled in court. (And remember, copyright law is a Federal law, which means Federal court.) The worst thing that could happen to an infringer âif detected – is that a court might make him pay you a âreasonable fee.â This means thereâd be no real downside for infringing. For 28 years (since the 1976 Copyright Act went into effect), youâve been told that your work was protected âfrom the moment you put pen to paper.â No more. And artists who for 28 years produced work with the confidence that it was protected by that promise will find that the promise has been repealed. In effect, you could now be penalized for having believed what the government told you for the last three decades.
The plan in a nutshell. For years, Free Culture advocates such as Creative Commons have been arguing that the US should lead the way in re-imposing copyright âformalitiesâ such as marking and registration. This would aid the spread of âfree cultureâ because most artists would fail to mark and register their work (or marks could be removed). This would make a vast number of illustrations and photographs royalty-free for anyone to use – or for companies like Google to sell access to.
Unfortunately for the free culturists, the US canât re-impose formalities without violating or withdrawing from the international Berne Convention, which forbids formalities. And if the US did opt out of Berne, our country would effectively become a copyright outlaw. That would hurt American trade.
So the Copyright Office has crafted their orphan works proposal as a âlimitation on remedies.â This would not re-impose formalities. But it would remove or emasculate penalties for infringement, potentially in any case where an illustration or photograph was published without ârelevant informationâ on the picture itself. In effect, this would force artists â as a hedge against infringement â to re-impose on themselves the âformalitiesâ the government canât. Any artist who didnât mark his work would expose it to no-fault infringement – a very clever way to re-impose formalities without actually putting it in writing.
Remember, this is all being done in the name of promoting creativity by artists. Thatâs why we, as artists, will have to speak up in numbers. We have to show lawmakers that the Free Culture movement – and the creative wannabes who comb the internet looking for royalty-free work – do not represent the true creative community. We have to say that this legislation would do great harm to our ability to create and make a living from our work.
What you can do. In their effort to speed this legislation through Congress, the plan’s shepherds are severely limiting testimony for and against it. Thatâs why your letters are important. Write to the senators and congresspersons who will be voting on this legislation, and do it as soon as possible. Express yourselves directly and frankly. You don’t have to write a complicated letter, but it’s important that you make certain points:
-Make it clear that youâre an artist and that you believe your small business will be endangered by placing limitations on remedies for infringement.
-Make it clear that you will never have the resources to police infringement of your work – which could occur at any time anywhere in the world.
-Make it clear that your work could be orphaned by others, no matter how diligently you do the right things to protect it.
-Make it clear that your work has significant commercial value.
For artists, this legislation would be a major revision of copyright law. The Orphan Works Report calls for a 10 year âsunset provision,â which means that Orphan Works legislation â once passed – will not be subject to reconsideration for another 10 years. But if your copyrights have been laundered into the public domain during that decade, theyâll be lost to you for good as surely as the income that will be lost with them. And after 10 years of copyrighted work turning royalty-free, the market for art will be so deformed â and expectations in the marketplace so settled â that thereâll be no going back. We canât wait until this law gets âreviewedâ 10 years from now to express ourselves on it.
The government should not be allowed to create a royalty-free stockhouse out of artistsâ work. Please write as soon as you can.
-Brad Holland, for the Board of the Illustratorsâ Partnership
-For additional information, also see: âCall To Action To Prevent The Orphan Works Amendment To Copyright Lawâ
and âFree Culture-The Copy Left Is Not Right.â
This email may be posted and/or forwarded in its entirety to any interested party.
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