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Rescuing Orphans: Can Congress Balance the Public Good and the Rights of Artists? PDF Print E-mail
News/Features - Feature Stories
Wednesday, 28 May 2008 02:33

Do Not Use! Copyright law is arcane enough, but a debate bubbling in Congress and among artists, libraries, and museums is important despite its obscurity.

The issue is "orphan works" - writing, photographs, paintings, and music whose copyright-holders are difficult (or impossible) to locate or contact.

Corynne McSherry, staff attorney for the Electronic Frontier Foundation, said the result is that a library or museum will not make the material available to the public because of the potential penalty of statutory damages - which have a ceiling of $150,000 per copyrighted item.

A museum is "worried that it might get sued," McSherry said. "So the material stays locked away."

"They just sit on a shelf," said Alex Curtis, director of policy and new media for Public Knowledge. "The main reason for that is because the owners can't be found to ask their permission to use.

"There are a lot of people that have a lot works essentially locked up that they can't use or even put on display," Curtis continued. "Some of the people are libraries, archives, museums that have received donated goods. Folks might die, and their heirs might donate boxes of photographs, or pertinent things that might be historically significant. But those works can't be exploited - meaning, no library could put it online ... because they don't actually have permission from the owner. A lot of that is culturally significant. Documentary filmmakers have the same problem."

Both the Electronic Frontier Foundation and Public Knowledge support orphan-works reform. The goal is to make more material publicly available. But many groups representing artists and other copyright-holders oppose orphan-works reform, arguing that their rights are being eroded.

 

The Public Good

The United States Holocaust Museum has thousands of items it doesn't consider displaying because of rights issues. Karen Coe, associate legal counsel for the museum, outlined the scope of the problem to a House of Representatives subcommittee earlier this year: "Since its establishment, the museum has acquired and currently maintains approximately 42 million pages of archival documents, 77,000 photographs, 9,000 recorded oral histories, 985 hours of historical film footage, and its library contains 72,000 items in 55 languages. The majority of these materials are foreign works, many of them are unpublished works, and many of them are orphan works."

Davenport's Putnam Museum doesn't call orphan works a problem; they're just a fact of doing business. Eunice Schlichting, chief curator at the Putnam, said items whose copyright owner is uncertain are marked for museum use only instead of display.

Amy Groskopf, associate director of resource services for the Davenport Public Library, said in an e-mail that her organization has a similar position: "If we have any questions as to whether an item we want to post on our Web site is in the public domain or something to which we have the rights, then we just don't post it."

The issue isn't limited to artifacts. Carnegie Mellon University's library system sampled its collection between 1999 and 2001 that found that it could not locate the publishers for 19 percent of what it owned. This means that because of current copyright law, the university would likely not digitize those works and make them publicly available on the Web.

"The risk is quite high," McSherry said of using orphan works. "It's just an unknown. ... Because everybody is staffed by lawyers, and us lawyers are naturally conservative in most cases, the impulse is going to be: I just want to avoid the risk. It's easier, it's less expensive ... ."

"For people who know the law and obey the law, this is a big problem," Curtis said, "and those people are risk-averse."

On a personal level, if you have a professionally taken photograph of a relative, a photo finisher is likely to refuse to reproduce it unless you can prove that you own the copyright.

This is the situation that Congress is trying to address, to allow good-faith users to reproduce these works without fear of statutory damages. The gist of both bills is that users would be required to conduct a diligent search for the copyright owner - best practices are not prescribed in the legislation at this point - prior to reproduction and would pay a reasonable fee if the owner comes forward later.

"That owner is compensated," Curtis said. "The only difference is that the law shields good-faith users from statutory damages."

Orphan-works reform has been percolating in Congress for nearly a decade, culminating in a 2006 report by the U.S. Copyright Office. (You can download the report at http://www.copyright.gov/orphan/.)

In 1976, Congress rewrote copyright law, automatically granting copyright protection to words, images, or music - "original works of authorship fixed in any tangible medium of expression." People who violate that copyright must pay the owner "actual" damages - compensation for losses or injuries that result from the violation. Owners who register their copyrights with the U.S. Copyright Office are further entitled to statutory damages, which begin at $750 per item.

The primary argument in favor of the legislation (S.2913 in the Senate, H.R. 5889 in the House) is that there's a public good to be achieved by addressing the orphan-works situation. Everyone from museums to documentary filmmakers to collage artists would be able to use material that now has much financial risk attached to it.

 

The Rights of Artists

It sounds simple enough until you consider the parents of those orphans. Current copyright law has a stiff penalty for anybody who violates a registered copyright, and as the law stands now, the only safe route is to get permission from the copyright-holder prior to use. Orphan-works legislation changes that landscape.

More than 40 organizations representing artists, photographers, and musicians are opposed to orphan-works legislation, claiming that "each bill permits, and even encourages, wide-scale infringements while depriving creators of protections currently available under the Copyright Act."

Brad Holland, co-founder of the Illustrators' Partnership of America and co-chair of the American Society of Illustrators Partnership, is one of those opponents. The core problem with the legislation, he wrote in an e-mail, is that it shifts the burden from the copyright infringer to the copyright holder: "Most people don't understand current copyright law. But under current law, they don't have to - the law itself protects them from not understanding it. Anything you create is considered your private property.

"But under this amendment, all citizens would be required to understand that they must now take active steps - not to actually protect their work ... but merely to preserve their right to sue an infringer in federal court ... ."

"Any modification of copyright protection is threatening," said Todd Joyce, president of American Society of Media Photographers (ASMP). "Fundamentally, there are just real problems with somebody using my work without my permission. ... I want to have control over my work."

There are many nuances in the issue, and you only need to look at the ASMP position on the orphan-works bills to get a sense of the convolution. The organization opposes orphan-works legislation philosophically but is presently supporting the House's version over the Senate's. Many other artist organizations oppose the orphan-works legislation in all its forms.

"We're not jumping up and down about the orphan-works bill," Joyce said. "We wish it never existed. ... I wish that the copyright law would stay the same. But the problem is: It's not" going to.

Passage of an orphan-works bill is nearly inevitable, he claimed, and ASMP feels this is its best opportunity to get a version that's friendly to artists: "When you look at what's ahead of us - meaning the people who are going to take over in the committees - they're not as friendly from a copyright standpoint as we would like them to be. ...

"I wish we could just say, ‘Vote no,' because that would be the easy route. ... [But] if these both get rejected, they're going to come back next session."

Holland's organizations oppose both orphan-works bills and find the House version just as problematic as the Senate version. "It's like accepting a plea bargain when you know you're not guilty," he wrote. His groups think the House version actually encourages copyright infringement. "The House bill is so bad it's hard to see how a worse one could be worse," he wrote.

At its core, orphan-works legislation primarily affects those artists who register their copyrights by removing the threat of statutory damages in some situations. For people who don't register their work, Joyce said, the effect of orphan-works legislation would be negligible: "This law won't really hurt you. If it passes, you can seek reasonable compensation" from somebody who uses your work without permission, which is substantially similar to the current law's actual damages.

Joyce doesn't dispute that there's a chilling effect to current copyright law, noting the situation of the Holocaust museum. "There are some legitimate beefs," he said. "There's got to be some middle ground somewhere."

ASMP has sought (and thus far been rebuffed on) a commercial exclusion for orphan works. The goal would be to rectify the situations of the United States Holocaust Museum, the Carnegie Mellon libraries, and the individual who wants to preserve a family photograph - while still preventing profitable exploitation of orphan works.

In lieu of that compromise, though, the ASMP supports a House provision requiring pre-registration of uses. "An infringer who wants to use an image who essentially cannot find the author has to register it with the copyright office," Joyce explained. "They also have to register all uses they intend to use it for. And if they deviate from those uses ... they lose all orphan-works protection."

Joyce said the concern with the Senate version of the bill is that infringers might use orphan works as a fallback defense as a way to avoid statutory damages. The current House version, with its pre-registration requirement, would prevent that abuse, he said.

McSherry conceded the potential for abuse in the Senate version, which the Electronic Frontier Foundation supports. "That's a fair concern," she said, "and it's a question of weighing costs and benefits."

Other critics of the House version think its requirements will have a chilling effect similar to the current law. Libraries and museums, faced with the pre-registration paperwork, might again opt not to use orphan works.

"We like the Senate bill best, because we're concerned about the notice-of-use requirement," McSherry said. "We're concerned that might be overly burdensome. ... It's also important that we make it easy for users, too."

McSherry further said that pitting "the good of the many" against the rights of artists is a "false dichotomy. ... Artists are going to benefit tremendously ... because now they'll have an enormous amount of resources that they don't have access to right now." Filmmakers, collage artists, and remixers will now have a wealth of material that was previously too risky to use.

Furthermore, artists might get paid more, because people might be more willing to use (and pay for the rights to use) orphan works under this legislation. Right now, she said, people might find a substitute that doesn't carry with it the risk of statutory damages. With that risk eliminated or diminished, she said, artists in general should benefit.

"Copyright is supposed to make sure that artists get paid so they'll be encouraged to create new works," McSherry said. "Ultimately, the goal was to promote the progress of science and the useful arts - to promote the growth of knowledge."

Orphan-works legislation would restore some of that ideal, she said.

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written by Wheat M Carr, May 28, 2008
The arugement that artists will benefit is misleading.

The concpet of copyright is to protect THE ORIGINAL artist, not the one who would use the work of another for their own benefit.

Those at least willing to consider both sides of the discussion should also visit
http://www.owoh.org

Wheat M Carr


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written by Ethan Geehr, May 28, 2008
There are many significant problems with the legislation:
1. Neither act delineates what constitutes a diligent search for the copyright holder and leaves that decision with the trial judge. That means different standards for different courts.
2. The infringer does not have to supply you with documentation showing their "diligent search" and the only way you can see that proof is by suing them in Federal Court-on your own dime, with no ability to recover that expense.
3. You can only recover "reasonable compensation"-assuming the two parties can agree on that-or you must sue the infringer in Federal Court-on your own dime, with no ability to recover those expenses. Oh, by the way, non-profits and charities don't have to pay reasonable compensation to use your work they get it for free.
4. The ability to restrict the use of your work in derivatives is almost non-existent, and whoever uses your work in a derivative owns the copyright to it.
I could go on but I won't...
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written by Leif Skoogfors, May 28, 2008
I a photographer. I have worked for over thirty years documenting, sometimes at serious risk, the social and political events throughout the world.

My income in retirement is primarily through the licensing of my work. Even under the current law it is virtually impossible to deal with those who steal my work. To prosecute a copyright infringer would cost over $10,000; it is almost a losing effort from the start.

But the passing of the current proposals on "Orphan Works" will make it even more difficult. This isn't about museums, it is about allowing me to protect my work.

Leif Skoogfors
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written by Birck Cox, May 28, 2008
On its face, this description seems to be even-handed. However, there is at least one passage that skates across a nasty fact of this legislation without comment:

"At its core, orphan-works legislation primarily affects those artists who register their copyrights by removing the threat of statutory damages in some situations. For people who don't register their work, Joyce said, the effect of orphan-works legislation would be negligible: "This law won't really hurt you. If it passes, you can seek reasonable compensation" from somebody who uses your work without permission, which is substantially similar to the current law's actual damages."

What that means, and what the author isn't stating clearly, is that anyone who has made a habit of actually registering their copyrights so far, as opposed to simply letting the law work, will lose their right to sue for damages and court costs in addition to "reasonable compensation". It will be as if they never bothered to register at all, and, like the rest of us, they will only be able to recoup a typical work fee in court. That will happen after they have done the work of discovering the infringement, assembling evidence, hiring a lawyer, and taking the infringer to court to defend a right that they now have automatically. Both categories will now-or as soon as this law goes into effect-become not rightsholders, as we are now, but plaintiffs, forced to prove a case in court, for which we may receive a severely limited award. In other words, we will no longer have copyright protection. It's that simple.
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written by schqc, May 29, 2008
The problem is that the copywright law, as currently written, is much too long. It is still being designed in the US, primarily, to protect Disney Corp from Mickey Mouse going public domain.

This has resulted in a current copywright existing for something now approaching a century. Good luck keeping track of most copywrighted works for a century.

So...most material becomes orphaned.

What needs to be done is that Disney be damned, the copywright needs to go to 50 years max. Much more reasonable would be 25.

Then we would hardly need an "orphan" bill.
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written by Kathy fincher, May 30, 2008
As you read the first part of the bill describing how wonderful it will be for public use, it leaves out the most important problem, this bill includes commerce. It is not a bill limited to institutions and non-for-profit organizations as described. It opens the door for making a profit using current artwork; not just the dusty archives described. It's this sort of language that appears as a wonderful contribution to society and no one gets hurt by it.
Here's how it applies to the creative community. Once an artist discovers their images are being used for profit, this bill invites a backdoor, unethical approach to business. In simple terms the redemy is, "Oh I didn't know it was yours, guess I'll share some of the profit with you.' The artist is now a business partner with the infringer. The business may be allowed to continue, the artist is paid a royalty from the back door, not the front door where both decide to work together. Should the work, or a portion of the work, be used from a professional artist, other contracts may be jepordized.
When writing about this bill, please don't wear out the reader discussing dusty archives and old photographs before admitting that this bill is harmful to young hands, hobby hands, student hands, and professional hands.

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