And no, I don’t mean little parentless children being forced into doing hard labor. There is a bill out that will impact the artistic world. Its impact on the literary world is not as great as on the actual illustration world, but the literary world will feel the negative effects on some level. It’s called the Shawn Bentley Orphan Works Act of 2008.
Admittedly, I am not the brightest star in the sky, but it appears to me that the purpose of this bill is to enable infringers of copyright, trademark, and design. I’ve spent the last five years of my life fighting infringement as an eBay investigator, and I am a writer who believes that intellectual property belongs in the hands of the rights owner solely. I can’t believe anyone looks at this act as a good thing.
Where the 1976 Copyright act gives practical protection to a copyright holder the moment they create a work, the Orphan Works Act does not protect a copyright holder unless he takes action to register their work. In other words, an owner of intellectual property must “register” their intellectual property in order to stake a claim in it.
If you paint something fabulous and decide to not register your work, or you simply were uninformed that you were obligated to register your work, and someone else searches the registered database for your registration and can’t find it, they have the right to use your work as if it were their own. If you don’t register it, the work is considered an orphan and is free game to anyone who stakes a claim on it.
This means someone could decide they like your painting, then they can use it on mugs and t-shirts, effectively making money on YOUR intellectual property. The same will be true of ANY intellectual property, whether written, painted, sketched, designed, sung, or any other creatively created work.
Yeah . . . bad.
The databases where your registration would be held would be privately owned, not government run, and the monies to run such a large operation will come from–you guess it, the owner of the intellectual property. You will have to PAY out of YOUR pocket to protect YOUR rights. I am violently opposed to such a thing.
I stole (with permission) the following example from someone else’s blog.
Following the rules the bill lays out, it potentially creates tens of thousands or millions of instances of this situation:
1. An individual or business finds an artwork (of any kind) that they want to use or incorporate commercially. But it has no author name affixed or associated with it. Under that circumstance or even if this individual knows the name of the author but cannot successfully make contact with them, then
2. The individual may search one of the few, or several, or many privately business-run databases of artworks which this bill will inevitably cause to come into existence (for the mentioned reasons). If the individual doesn’t turn up a connection of the work to its author or is unable to contact the author, then
3. The individual may file a notice with the Copyright Office of their intent to use the work commercially. Many situations would end here: they would use the work without owing the author anything. Now comes what kills art.
4. If the author of the infringed work finds out that it has been infringed, and should he go against the infringer for it, the infringer may claim to the court that he made a “good faith” effort to find the author of the work or make contact with him, but never found them to be in connection with the infringed work, or never made successful contact, and therefore
5. The court will order the infringer to pay the copyright owner only a “reasonable fee” but the infringer may continue use of the work, without limitation, and
6. The infringer cannot be compelled to pay attorney’s fees to the individual whose copyright he has violated. This is the real death blow to the authors of infringed works, as this current protection - where copyright violators must pay the attorney fees in cases of violation - this is what currently protects copyright most effectively. But under this bill, this protection will be removed by “limitation”. Consequently the author of the infringed work could never afford to go to court against anyone who infringed their work, because the most money they could get out of it would be far less than the attorneys fees which they, the author of the infringed work! - would have to pay.
Someone else profits from work they did not make - and it could be *my* work - and the author - *which could be me* has no means of obtaining any money for it.
Other practical (more correctly impractical) results of this? The market value of the author’s work is diluted by two thirds, since he can’t guarantee exclusive use to anyone on sale or license.
No author is afforded any copyright “protections” unless they register, and they would have to do this for every work of art they have ever created, paying a fee to each of several or many databases, and if they fail to register with all of the databases, anyone can pick up their work for unlimited use from a database they might have overlooked. Worse, the databases are not perfectly searchable, and many works properly registered will fall through the cracks. Images not in any database - the vast majority of contemporary images, since they *cannot* capture every living artist’s every work of art - are also unprotected.
It’s a reversal of copyright protections. Currently (again, under the Copyright Act of 1976) if you register a work you can claim damages whether or not the infringer found you or knew you to be connected with the work, but under this bill, your work would not be protected, if the infringer, uh, managed not to find you. Which would be very easy to do when there are two, three, five, seven databases to search - which database *won’t* find you? The court will hold that up as a “good faith” search. A simple failed search of any database will be enough.
With the private, business-run registries on whose contents decisions of copyright limitations hinge, the Copyright Office - or part of the United States government - would be handing control of citizen rights (copyright protections) over to private enterprise. Would any artist like that? Their rights being given to private business without their knowledge or consent? Should any citizen like that idea? That they, or an artist they know, will have to monitor private enterprises for the governance of their copyright?
Worst, even if an author successfully monitors all of their works of art in all of the databases and pays a fee to each of the many databases for every work of art they have ever created (which with so many artworks and so many fees could easily be far more expense than an artist makes profit), and if he ever finds any of his work to be infringed, the practical protection of his work remains as nonexistent as the above numbered points describe.
It must also be pointed out that the Copyright Office seems to have, or breed, contempt for the copyright protections of authors. This was the Associate Register for Policy & International Affairs’ reply to Brad Holland (of the Illustrator’s Partnership) in a meeting where Holland questioned the bill:
Holland: If a user can’t find a registered work at the Copyright Office, hasn’t the Copyright Office facilitated the creation of an orphaned work?
Carson: Copyright owners will have to register their images with private registries.
Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!
Write your representatives and let them know how you feel about this. Here’s a link: http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11350921
Or use this:
http://www.usa.gov/Contact/Elected.shtml
This whole concept bothers me because it puts all the responsibility on the creators of intellectual property and none on those who simply want to use another person’s work. So I leave you all with this politically charged blog in the hopes that you will look into it, draw your own conclusions (I don’t expect anyone to share my opinion and I don’t proclaim to have all the details, but I encourage you to research for yourself, draw your own conclusion, and be a responsible member of our society by actively communicating with your representatives on matters that matter) I would be glad to hear your opinions, whether for or against and why.
