My usual rants about copyright law involve unwarranted strengthening of copyright law to protect old works that ought to be public domain by now. This post, however, deals with the drastic weakening of copyright protections by the proposed Orphan Works Act of 2008 (H.R.5889). This piece of legislation would damage the livelihoods of living artists, amending the law to allow anyone to infringe on a visual work’s copyright after being unable to locate its author after a “reasonably diligent search.” In theory, this would allow works whose authors have died or otherwise dropped off the face of the earth to be used commercially, which could only be a good thing, right?
Not so much. The infringer would be allowed to determine what constitutes a “reasonably diligent search.” This goes far beyond fair use; the infringer would be free to commercially exploit the work for any purpose. The entire burden of proving copyright infringement of a so-called orphaned work would fall on the artist. Current copyright protections provide for injunctive relief, payment of attorney’s fees, limitations of damages in a countersuit, and a discovery process for determining infringement; none of these would apply to orphaned works. Even images that directly incorporate copyright and contact information would be easy prey for unscrupulous infringers who deliberately remove such information, because they could claim an orphaned works defense, making it nearly impossible for an artist to prove infringement.
The bill proposes a poorly designed technological solution: databases of known works, in which artists would register their work so it would be available for searches and comparison. However, these databases would be run by for-profit companies, and with no limit on what could be charged per work, it would be prohibitively expensive for artists to register their work. Anything not located in these databases would instantly become orphaned works; a cursory glance at the databases would be all an infringer would need to claim a “reasonably diligent search” for a work’s original artist.
On top of that, works created by artists outside the United States would be required to register, which violates both the Berne Convention for the Protection of Literary and Artistic Works and the Agreement on Trade-Related Aspects of Intellectual Property, both of which prohibit the impediment to exercise of rights that a registration database would create.
I first ran across this alarming bit of legislation on Brad Guigar’s blog at his fine webcomic, Evil, Inc.. He provides a link to a page where you can take action against the bill, which also includes a good overview of the bill’s effects.
The IPA has been following this legislation from its inception earlier this year, and their Orphan Works Resource Page for Artists is an excellent source of further information. Included is a copy of a letter written by artist Michiko Stehrenberger, whose work was stolen by a tobacco company and who wouldn’t have had any legal recourse under the law proposed in H.R.5889. You can also read the actual text of the bill on the Library of Congress site.
I hope someday to make a living from my art, so seeing irresponsible legislation like this makes me extraordinarily angry. It’s hard enough making a living as an artist — I still don’t — without the government declaring open season on your intellectual property.
