May 15, 2008
Senate Committee Approves Orphan-Works Bill
The Senate Judiciary Committee unanimously approved a bill today to make it easier for scholars, archivists, and others to use orphan works. These are books, films, and other creations whose owners cannot be identified. Those who redistribute the material risk incurring penalties for copyright infringement. The legislation, The Shawn Bentley Orphan Works Act, S.2913, would make it less costly for people to exploit orphan works.
A companion bill cleared a panel of the U.S. House of Representatives last week.—-Andrea L. Foster
Posted on Thursday May 15, 2008 | Permalink |Comments
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make it less costly for people to exploit orphan works.
and easier to rip off artist making a living today!
— Bob Giordano May 15, 03:09 PM #
@the author: I don’t know if you are trying to use an objective voice in this article or not, but if you are the term “exploit” might be one you want to avoid. This isn’t the first time it has been used in relation to this bill, either. Using a work that has no author is hardly exploitation.
— Sara May 15, 04:44 PM #
The issue has been that scholars can’t get appropriate permissions from copyright holders to cite works properly in research because they (and librarians can’t locate the copyright holder! This whole issue of “exploitation” is a red herring. I’m disappointed to see it used here; I agree with Sara.
— Adrian May 15, 05:05 PM #
There is no exploitation here. There are tons of works, literary and musical (to name two) which are unused because their rights are lost in the mists of time or too many “begats” to make it possible to find the rights holder. We need a way to use such works without fear of legal retaliation!!
— Al May 15, 05:08 PM #
The above screed unwittingly pinks the imbecility of our moment’s leech-morality: “We need a way to use such works without fear of legal retaliation!!”
So… Then? The issue isn’t art reclamation or any such hokey concern for any inadvertent “cultural loss.” The issue, as with most business coursing along gainfully through Congress, is profiteering with impunity.
Call it what is.
By the way, speaking of orphaned property, anyone got any idea where the deeds to those Iraqi oil fields might be?
— Peter Cook May 15, 05:42 PM #
This is an OPINION from a copyright Lawyer
Greetings!
Many of your wonderful members asked if I would join in order to answer some questions since I am a practicing attorney who works extensively in copyrights and trademarks. I would be happy to do so if it will clear up some confusion on this OW issue. I just ask if you do ask a question, you be patient with me. My letters to Congress have become quite popular and I am being pulled in all ends. I have skimmed the postings and I have a few comments for you:
1) The biggest problem with OW from my perspective is that it truly changes the system of registration. Formality has not been required (i.e. – registration, copyright notice, etc.). It also places a strong burden on an artist to protect his or her work and NOT on the person wanting to use a so called “Orphan.” The procedure set forth in the proposed language of both the House and the Senate Bills are terribly inadequate and will cause so many problems than help.
2) There are other countries using excellent systems for true “orphans.” Canada is a poster child for this. It places the burden on a potential user to truly prove it is an orphan and that the potential user has done everything to do something to find him or her or it. The heart tugging stories being used are truly fluff. There are “fair use” exceptions and the like that can apply. The amount of orphans that LEGITIMATELY should be used are very small for the drastic impact this legislation would have. There are truly motives for profit here for databases, “orphan royalties”, and the like.
3) Graphic Artist Guild and the some others are stating that this Bill WILL pass and that we should not write letters. I could not disagree more. First and foremost, it is a persons responsibility to let his or her government know his or her opinion. Secondly, there is a significant amount of education that MUST take place. I continue to speak to legislative offices that have no idea what these bills are all about. It is a crime, many of them think this is just “administrative” and will not affect very many people.
4) Finally, these Bills punish persons who have followed the law since 1976. The law has not required registration and/or notice provisions. These persons would truly be hurt the most. This will have a strong impact on rural artisian communities and others who create amazing works that represent our country. To this point, the only way their work has not been stolen is that it is against the law – that will no longer be the case.
Don’t get me wrong, if these Bills pass, merge and become law – attorneys will benefit greatly. It will be essential that one who creates uses highly skilled legal counsel to register his or her works and develop a program to insure his or her works are not orphans. It will also require artists to go into their archives and begin registering or re-registering prior works to insure that all their “stuff” is covered.
The BEST way to prevent this legislation from coming into law is by educating yourselves, and speaking intelligently on the issue. It appears as if many of you have and continue to ask questions. And for our international friends – your voice is important as this does affect your protection here in the US. If your works comes on US soil – your work will be covered under these provisions.
Keep fighting the good fight!
Tammy Browning-Smith
Please note, the following post is for educational purposes only and DOES NOT constitute the practice of law or an attorney/client relationship.
— Roberto Ortiz May 15, 07:58 PM #
These works are indeed effectively lost to research without loosening the ridiculous DMCA stringency. Copyright should be limited for the sake of innovation, not the opposite argued above. NOT EXPLOITATION, just thwarting the greed of heirs who somehow, without support, feel entitled to prior creativity.
— William L. Graham May 16, 01:08 AM #
Why is it that these copyright items seem to engender such acidic responses?
The answer isn’t simple but, it seems to me, that the question is: How can people REASONABLY be able to use another’s work when the owner of that work isn’t readily identifiable?
One potential answer is to provide a search mechanism that SOMEHOW records these works. If that’s so, it effectively creates the antithesis of the Berne Convention resolve which doesn’t require registration to be copyright protected.
Another answer is to increase the penalties, but who would be the beneficiary of those fines? The government has no ownership and shouldn’t benefit while the true owner couldn’t be found.
The only thing that makes any sense to me at all is to require the re-user to expend REASONABLE efforts to find the owner and to document those in the event that a proper owner contests the use.
— Robert May 16, 10:08 AM #
Robert is asking the right question – the attorney who posted above him is taking an adversarial position.
This is not a simple issue, but I’ll give an example: I have in my basement about 300 old 78 RPM records dating back to the hand-cranked Victrola days of the ‘teens. I can’t do ANYthing with the music on them except play them or sell the 78s. I would like to make digital copies available on the web, as some of the 78s may be the only copies in existance. But I have no money or time to do extensive research on the copyrights. How can such music be preserved?
I like the idea of providing databases that are searchable, and requiring only reasonable effort (a term that would surely require case law to define “reasonable”) before “using’ the material.
— Al May 16, 12:55 PM #
http://blog.ryanrobinson.com/2008/05/fyi-2008-orphan-works-bill.html
— Peter Cook May 16, 02:08 PM #
The Frank Church-era 1976 copyright protections were/are strokes of neo-Jeffersonian brilliance; today’s virulent attack on the very nature of copyright itself is nothing short of calling the Geneva Convention “quaint.” Same mouths, same motives.
— Peter Cook May 16, 02:19 PM #
this is a good piece of legislation. See here for more: http://www.itwire.com/content/view/18308/53/
— David May 21, 06:29 AM #
Making true orphaned works available for anyone to use is fine in principle, but in this case of this bill, the devil is in the details. The result of these proposed changes would reduce the rights of visual artists and other copyright holders to protect and control the use of their own work. It eliminates the rights of artists to collect attorney’s fees and statuary damages against infringers, making it impossible for artists to protect and control their own work. Read this article for a more objective view:
http://www.nytimes.com/2008/05/20/opinion/20lessig.html?
— Bill Thomson May 22, 12:48 PM #
The person wanting to use the works should be required to perform some legal or official search that costs them something – some “official”, and fee-based service to do this will eliminate most but not all of the IP vultures.
And don’t make it cheap, make it as expensive and bureaucratic as trademarks and copyrights, and make them prove their identities, citizenship, whatever. It’s not cheap for us artists and musicians to protect our works, why should it be cheap or easy for people who want to steal them?
— DC Jun 25, 12:42 PM #