Orphan Works 2008 Federal Legislation

The Artists Foundation (AF) is working very closely with several artists run advocacy organizations on tracking and advocating on the Orphan Works 2008 Federal Legislation. The proposed legislation, if it passes as it is now written, will change US copyright law. Such a change, as it is now written, will negatively impact artists of all disciplines (literary, visual, music, etc.), as well as every US citizen. There are two bills - one filed in the House H.R. 5889 and one in the Senate S. 2913. The bills differ from each other BUT both bills are highly problematic and should not pass as they are now written.

It is very important to note that the legislation is moving quickly in both the House and in the Senate:

The House Bill- As of 5/7/08- the House IP Subcommittee unanimously approved H.R. 5889 by a voice vote, and it has moved to the House Judiciary Committee. There were no needed corrective changes made to the legislation (as of this date by the Subcommittee)

The Senate Bill- As of 5/15/08- the Senate Judiciary Committee unanimously reported S. 2913 out favorably with no needed corrective changes made to the legislation.

Recent Boston Herald Article on the issue: http://www.bostonherald.com/business/general/view.bg?articleid=1095637

-----------------------

The very basics on this legislation:

Currently under US copyright- the two legal ways to use someone's work is under what is called "fair use" or to find the copyright owner and negotiate for the use of the work (whether you have officially filed for copyright with the US copyright office or not). If "fair use" doesn't apply and you can't find the copyright owner you can NOT legally use the work. If the proposed current legislation passes as it is now written, that will change. These proposed pieces of legislation will allow for someone (a person or a business) who has done a "search" (which is not clearly spelled out in the legislation at this point as to how long and what the search will need to entail) and if they can't find the copyright owner, they will be legally allowed to use or infringe the copyright (i.e. use your work). This will hold for artwork, music, family photos, films, essays, poems, etc.. You don't lose your copyright, but your work will be able to be legally infringed under these pieces of legislation if your work is deemed to be orphaned.

What has prompted this legislation you may ask? Libraries and other educational institutions have works in their collections that they would like to use the copyright for educational purposes and presently they can not find the copyright owners in question. Individuals want to be able to retouch old family photographs and they too can't find the copyright owner of the photographs (although I personally know folks who have had their family photos retouched without any problems, some people seem to be having problems in this area). Documentary filmmakers are also in need to have access to images and work that they can not find the copyright owners of. These are clearly very important issues that need to be dealt with- unfortunately both pieces of legislation allows for anyone to infringe who has done a search and the proposed legislation makes no distinction from educational institution v.s. commercial institution. (i.e. an advertising company could use your work under this proposed legislation if they searched and could not find you). Although there is some effort to minimize someone using the orphaned work for commercial purposes, both pieces of legislation do not offer enough protection for artists of all disciplines or individuals for that matter.

There are other aspects of this legislation that are very troubling that are contained in both bills: 1) the pieces of legislation call for on-line databases or what would be also called registries to be certified by the Copyright office for visual artists to register their work with. No where in the legislation does it say they are to be free of charge to artists and although the law does not mandate you to register your work with these databases/registries- it is clear that these databases/registries will be a key tool for those to use searching for the copyright owners and a way for them to justify they did a search, 2) the amount of damages that can be retrieved by the copyright owner if they "surface" and find their work was deemed and used as an orphan work when in fact it was not orphaned are very problematic and unacceptable (legal fees need to be covered) 3) this law will essentially force musicians, writers, visual artists, and others who want to protect their creative work to officially copyright their work to protect it-this will be too costly for most individuals and small businesses. 4) and the very real problem that works will be classified as orphaned works when in fact they are not orphaned, etc..

The AF has complied key talking points for individuals & organizations to use in advocating for changes to the Orphan Works Legislation.

-----------------------

The Illustrators Partnership of America has a wonderful website that goes into much more detail on this legislation and you can also down load the legislation off of their website to read it for yourself. You can also join their email list to be kept abreast of this legislation.

www.illustratorspartnership.org

Their website also has an easy way for you to contact your Congressperson and Senator: http://capwiz.com/illustratorspartnership/home/

If you want to track and read the legislation (HR 5889 and S.2913) off the Federal Government's official website: http://thomas.loc.gov (again I encourage you do to so)

PLEASE note- do not mail a letter to your Congressperson or Senator to their DC office (it will take over a month for them to get it due to the mail needing to be screened).If you want to mail a letter - send it to their district office. I would also urge you to call their staff and meet with their home district staff on this important issue. To find out who represents you: www.vote-smart.org

Another wonderful resource is the Stock Artists Alliance's website. www.stockartistsalliance.org

Also of note is the Americans for the Arts website :http://www.artsusa.org/

and their page on this matter: http://www.artsactionfund.org/congress/default_009.asp

If you run an artists/arts organization or an artists/arts advocacy organization and are interested in working with the Artists Foundation on this issue- email us- afinfo (at) artistsfoundation.org

I urge you to get involved and to get others involved. Your copyright protection and everyone else's is depending on it.

---Kathleen Bitetti- Artist and Executive Director

-----------------------------------------------

NOTE: The European Union on June 4th 2008 approved a good orphan works agreement: http://ec.europa.eu/information_society/activities/digital_libraries/index_en.htm

Some model protocols for interacting with Native American work and art work in general: http://www2.nau.edu/libnap-p/protocols.html

The Orphan Works 2008 Federal Legislation