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As promised, the press office of the Senate Judiciary Committee just sent me their release on the Shawn Bentley Orphan Works Act of 2008. (Thanks, y'all!) Below the cut, it's reproduced in full. The first section is a press release, i.e., the who (as in, who's sponsoring it), what (description of the bill), when (today), where (Washington, DC) and why (pull-quotes from the bill sponsors explaining their goals) for journalists to refer to. The second section is a statement from Sen. Patrick Leahy, which (based on its wording) I think is being read before the Senate today.

I especially want to draw attention to the third section in order to head off any possible misinterpretation. The third section is a summary of the bill, not the bill itself. It describes what will be contained in each section of the bill, but the summaries and descriptions are not the bill. So, for instance, the bit in section 2 where it talks about "conditions on eligibility" -- those will be spelled out in much greater detail in the bill itself, which you can look for on THOMAS when it's posted there. I expect it'll be up by tomorrow. (ETA: according to Alex Curtis over at Public Knowledge, the bill numbers you're looking for are S.2913 and H.R. 5889. They have PDFs which you can download, too.)

I'll have some remarks on the bill itself, once the actual text is posted. But for now, enjoy the press kit! (ETA: vanbeast tracked down the direct link on Sen. Leahy's site, so you can read it there too.)




Judiciary Leaders Introduce Bipartisan, Bicameral Orphan Works Legislation

Leahy, Hatch, Berman, Smith Introduce IP Legislation


WASHINGTON (Thursday, April 24, 2008) – Leading members of the Senate and House Judiciary Committees today introduced bipartisan, bicameral legislation to preserve so-called “orphan works” – works that may be protected by copyright, but whose owners cannot be found. Potential users of orphan works often fail to display or use such works out of concern that they may be found liable for statutory damages, amounting to as much as $150,000.

Legislation to address those concerns was introduced today in the Senate by Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Sen. Orrin Hatch (R-Utah), a senior member and former chairman of the panel, and in the House by Rep. Howard Berman (D-Calif.), chairman of the House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property and Rep. Lamar Smith (R-Texas), ranking member of the House Judiciary Committee. The bill is co-sponsored in the House by Judiciary Committee Chairman John Conyers (D-Mich.) and Rep. Howard Coble (R-N.C.) The legislation would enable users to exhibit orphan works if, after a thorough, documented search, the copyright owners are unable to be located. The legislation outlines the criteria for such a search, and provides for court review to determine if a search has been adequate and done in good faith. If the copyright owner later emerges, the user must pay reasonable compensation to the owner. The bill also includes provisions to further protect owners of these orphaned copyrights, should any user exhibit bad faith.

“This legislation will help bring together potential users and owners of orphan works,” said Leahy. “But also as important, it will allow the public to view works that may remain orphaned. A Vermonter can restore a family photograph from three generations ago, even when the original photographer is no longer available to give permission. With this bill, we can preserve important parts of our personal and national heritage, without giving a free license to infringe on established copyright protections.”

“There are thousands of artistic creations around the country that are effectively locked away and unavailable for the general public to enjoy because the owner of the work is unknown. Identifying the owner of a copyrighted work is difficult in many cases and represents a huge liability to those who would bring the work into the public domain without permission,” Hatch said. “This bill represents a commitment from Congress to unlock orphan works so the general public may once again enjoy them.”

“Too many valuable works are unused because their creators are unknown, and potential users fear excessive liability,” said Berman. “We must act to lower the legal barriers that keep these works from the public.”

“Millions of copyrighted works are effectively ‘locked up’ and unable to be enjoyed by the public due to our current copyright system,” said Smith. “As a result, investments in new works and expositions by libraries, museums and others are frequently not undertaken due to the possibility of lawsuits and large statutory damage awards. By placing reasonable limitations on liability, while ensuring that owners receive compensation for the use of their works, the bills introduced today will help reduce uncertainty and encourage creativity.”

Leahy, Hatch, Berman and Smith have longstanding interests in intellectual property issues, and have introduced copyright legislation in the 110th Congress, including a bipartisan, bicameral bill to reform the patent system.




Statement of Senator Patrick Leahy

On Introduction of the Shawn Bentley Orphan Works Act of 2008

April 24, 2008


Today, I join once again with Senator Hatch to introduce a bill that will have a significant and positive impact on our cultural heritage. Hundreds of thousands of so-called “orphan works” – works that may be protected by copyright, but whose owners cannot be indentified or located – are collecting dust. Despite tremendous interest in using these orphan works in new collections and new creations, they often languish unseen, because those who would like to bring them to light, and to the attention of the world, fear the prospect of prohibitively expensive statutory damages. In other instances, the copyright in an orphan work may have expired, but potential users lack the information to be certain of the propriety of going forward with its use.

The Shawn Bentley Orphan Works Act of 2008 will remedy this situation. It will help potential users of orphan works find the owners of those works, and it will help the owners to receive compensation. The works will no longer be orphans; their owners will reap the financial benefits of their use, while the public reaps the creative benefits. More creative works will be used, contributing to our cultural and artistic heritage, and more creators will receive compensation for use of their work.

Our legislation permits the use of an orphan work only if the potential user performs and documents a good faith search for the copyright owner. If users cannot locate and contact copyright owners, they may use the orphan work. But if copyright owners later make themselves known, and if users have performed a search that qualifies under this legislation, owners are entitled to reasonable compensation. The user will not be liable for full statutory damages in those circumstances, but if a user does not perform that good faith search, the user will face up to $150,000 in statutory damages.

In practical terms, then, what does this mean? It means that a woman in Vermont can restore a wedding photograph of her grandparents, even if she cannot locate the photographer to get permission to do so. It means that a library can display letters of American soldiers wrote during World War II, even if the library cannot contact the soldiers or their descendents. It means that museums can exhibit Depression-era photographs, even if they cannot determine the name of the photographer.

What this bill does not do is create a “license to infringe.” In any of the above instances, if the users do not conduct a good faith search for the copyright owner, those users are in the same boat they are in now when it comes to infringement. This bill does not change the basic premise of copyright law: If you use the copyrighted works of others, you must compensate them for it. As an avid photographer, I understand what it means to devote oneself to creative expression, and I applaud anyone with the talent and commitment to make a living doing so. Orphan works are too important to our families, our communities, and our culture to go left unseen and unused.

I thank Senator Hatch for his help in developing this legislation, and I look forward to working with him to ensure that this bill becomes law. I am especially pleased to name this bill for Shawn Bentley. Several years ago, Shawn died, tragically young, but he left behind a legacy of affection and regard for all of us who knew him. He served Senator Hatch as a counsel for intellectual property, and it was he who first inspired this effort on orphan works. Naming this bill for him is a testament to his dedication to the issue, and his value to the Judiciary Committee.

I ask unanimous consent that the full bill text be included in the Record.




SHAWN BENTLEY ORPHAN WORKS ACT OF 2008

SECTION-BY-SECTION

For Background


_____


Sec. 1. Short Title. Cited as the “Shawn Bentley Orphan Works Act of 2008”.

Section 2. Limitation on Remedies in Cases Involving Orphan Works.

In general.—The Act creates a new section 514 of title 17, which provides a limitation on remedies in certain instances of copyright infringement in which the user of the work is unable to locate the owner of the work despite having conducted a diligent search.

Conditions on eligibility. To qualify for this section, a user must (1) perform and document a good faith – but ultimately unsuccessful – search for the owner of the copyright in the work being used prior to such use; (2) provide attribution if the identity, but not location, of the owner is known; and (3) include with the use of the infringing work a symbol, indicating the author was not located, in a manner the Copyright Office will prescribe.

Pre-litigation requirements. If the owner later emerges and provides notice of infringement to the user, the user must negotiate reasonable compensation in good faith and render any such compensation agreed upon in a timely fashion.

Requirements in litigation. If the owner files an action for infringement, the user must assert the right to a limitation on remedies under this section in its initial pleading; consent to, or be held to be subject to, the jurisdiction of the court; and provide documentation of the qualifying search to the owner at the time of the initial discovery disclosures.

Qualifying searches. A court, in determining whether a search is diligent, shall consider factors including whether (1) actions taken in a search are reasonable and appropriate in a given situation, (2) the infringer employed the applicable best practices maintained by the Copyright Office, and (3) the search took place immediately prior to use. The fact that a work lacks identifying information pertaining to the owner is not sufficient to meet this standard.

The Copyright Office is charged with maintaining publicly available statements of best practices. The statements of best practices may include using Copyright Office records, private registries, industry practices and guidelines, technology tools, and electronic databases, which may require a charge or subscription fee.

Limitation on remedies. If the user qualifies for a limitation on remedies under this section, but the user and owner do not agree on reasonable compensation, a court may determine and award reasonable compensation, defined as the amount to which a willing buyer and a willing seller would have agreed immediately prior to use.

No award of damages may be made if the user is a nonprofit educational institution, museum, library, archive, or a public broadcasting entity and such user can demonstrate that the infringement was not performed for direct commercial advantage; the infringement was primarily educational, religious or charitable in nature; and, the user promptly ceased infringement after receiving notice. Proceeds directly attributable to the use may be awarded to the owner.

A court may impose injunctive relief except in the case of a work that has been recast or integrated with a significant amount of the infringer’s original expression.

The limitations on remedies under this section are not available if the infringer asserts it is not subject to the courts of the United States for an award of damages and refuses to pay reasonable compensation.

Preservation of other rights, limitations and defenses. This section clarifies that other rights, limitations and defenses, such as fair use, are preserved and ensures that if a statutory license is applicable to the use, that provision applies instead of this section.

Derivative works and compilations. This section clarifies that a user who qualifies under this section shall not be denied copyright protection in a compilation or derivative work based on the orphan work contained in the compilation or derivative work.

Section 3. Database of Pictorial, Graphic, and Sculptural Works. The Copyright Office must create and undertake a certification process for the establishment of electronic databases of visual works. Certain requirements for any such registry are prescribed. The Copyright Office will post a list of all certified registries on the Internet.

Section 4. Effective Date. The Act has a staggered effective date. For pictorial, graphic, and sculptural works, the effective date will be the earlier date of (a) the date on which the Copyright Office certifies at least 2 separate registries under Section 3, or (b) January 1, 2011. For all other works, the effective date will be January 1, 2009.

Section 5. Report to Congress. The Register of Copyrights must report to the House and Senate Judiciary Committees on the implementation of the Act by December 12, 2014.

Section 6. Study on Remedies for Small Copyright Claims. The Register of Copyrights must conduct a study to determine the feasibility of instituting a small claims procedure for instances of infringement involving smaller amounts of monetary relief. The Register shall present a report on the study, including any legislative suggestions, not later than 2 years after the date of enactment.

Section 7. Study on Copyright Deposits. The Comptroller General must conduct a study examining the function of the deposit requirement in the copyright registration system and report to Congress within 2 years after the date of enactment, making any administrative, regulatory or legislative recommendations.

###

Comments

( 54 comments — Leave a comment )
jestermotley
Apr. 24th, 2008 09:18 pm (UTC)
Oh wow. Thank you so much. This will come in handy when trying to explain to the artists friends that I know how their works aren't about to be sniped, as my word alone wasn't good enough in the face of countless bloggers.
maradydd
Apr. 24th, 2008 09:24 pm (UTC)
No problem! This is public information, so feel free to disseminate it widely. I haven't yet found a link to the press release, but if I find one I'll edit this post.
(no subject) - vanbeast - Apr. 24th, 2008 11:01 pm (UTC) - Expand
(no subject) - maradydd - Apr. 25th, 2008 01:32 am (UTC) - Expand
Can someone explain to me why this isn't a global thiefs charter? - (Anonymous) - Apr. 26th, 2008 04:24 pm (UTC) - Expand
patrickat
Apr. 24th, 2008 09:41 pm (UTC)
Wow, it doesn't sound at all like the terrible copyright destroying monster that that the recent blog panic made it out to be.
maradydd
Apr. 24th, 2008 09:44 pm (UTC)
Yeah, funny how research bears fruit like that.
rbfineart
Apr. 24th, 2008 10:30 pm (UTC)
Thanks for posting this. My only fear with a bill like this is the "big guy vs the small guy". While I know this bill makes provisions to help protect those that own a copyright, I can still see larger companies abusing it.

I can see a larger company grabbing copyrighted content and using it, then keeping the artist tied up in court. That's my only real fear with this, is that the deep pockets of a large company could outlast the very likely shallow pockets of the individual artist.

As an artist who has had to deal with legal issues relating to my career, I can tell you from personal experience that the threat of a protracted legal battle with a large company more than likely will cause a lot of artists to cave and settle, if they aren't giving it up entirely, more than likely giving the large company use of the image for a fee that is far below market value.
phanatic
Apr. 25th, 2008 01:51 am (UTC)
I can see a larger company grabbing copyrighted content and using it, then keeping the artist tied up in court.

They can do that *now*. See Disney.
(no subject) - maradydd - Apr. 25th, 2008 02:01 am (UTC) - Expand
(no subject) - rbfineart - Apr. 25th, 2008 02:01 pm (UTC) - Expand
(no subject) - (Anonymous) - Apr. 26th, 2008 12:20 am (UTC) - Expand
(no subject) - rbfineart - Apr. 27th, 2008 08:20 pm (UTC) - Expand
(Deleted comment)
(no subject) - rbfineart - Apr. 30th, 2008 02:34 pm (UTC) - Expand
(no subject) - (Anonymous) - Apr. 29th, 2008 12:25 pm (UTC) - Expand
(no subject) - rbfineart - Apr. 30th, 2008 02:36 pm (UTC) - Expand
vanbeast
Apr. 24th, 2008 11:01 pm (UTC)
I work for an animation studio where Mark Simon's article hit the mailing lists today. I pointed them to your post re: that before I knew that they had released this today.

If you're interested, I could pass along the summaries I wrote for them, though I'm sure you're ahead of me on that.
maradydd
Apr. 25th, 2008 01:30 am (UTC)
Sure, I'd love to read them! You're welcome to post them here if you like, or you can drop me an email (maradydd@livejournal.com works).
dejablu503
Apr. 25th, 2008 07:04 am (UTC)
Thanks for doing this, whenever I hear a politician say "But it's for the children" or "We are trying to do this for the public good" I develop a seizure sized twitch.... it makes me a very biased reader. It also makes me appreciate your lack of bias and input.
(Anonymous)
Apr. 25th, 2008 07:46 am (UTC)
"People. Really. When are you going to learn?"

I notice how you rather glibly neglect to mention that you were wrong about the legislation existing.
maradydd
Apr. 25th, 2008 07:52 am (UTC)
Beg pardon? I mentioned on Wednesday that the Judiciary Committee press office told me a bill would be introduced Thursday, and so it was.

I'm taking the Illustrators' Partnership to task for failing to document their sources, because they're complete shit at it.
(no subject) - patrickat - Apr. 25th, 2008 11:56 am (UTC) - Expand
(no subject) - (Anonymous) - Apr. 25th, 2008 03:43 pm (UTC) - Expand
(no subject) - (Anonymous) - Apr. 25th, 2008 04:13 pm (UTC) - Expand
(no subject) - (Anonymous) - Apr. 25th, 2008 05:49 pm (UTC) - Expand
(no subject) - (Anonymous) - Apr. 25th, 2008 10:48 pm (UTC) - Expand
bupaje
Apr. 25th, 2008 04:25 pm (UTC)
Thanks for posting this and for your research. Slogging through and sorting truth from half-truth is often difficult. I really appreciate when someone makes an effort to post clear, concise and unbiased information that allows me to make a decision.

In the interest of full disclosure, I was one of those who -uncharacteristically- got worked up when I read Mark Simon's article. Don't get me wrong, I still have concerns about the potential for abuse and quashing of creators rights by more powerful entities.

I'd like to see some strong preemptive 'rip your throat out' type language against those who may attempt to use this, in a fashion similar to the SLAP lawsuits of recent memory, to beat challengers into submission.

Being a very visual guy I sometimes trip over trying to explain in words what I see in my head but I wonder if it might be possible to create a new hierarchal copyright device that allows an artist to easily register a 'tree' of related work. For example I often get one idea that leads to or is related to another and inherits ideas from the parent or sibling idea. If I could copyright this genealogy of related material for it might be cheaper and easier than doing individual pieces -and provide some other useful validation of my ownership by showing how it relates to similar work I have created.
(Anonymous)
Apr. 25th, 2008 06:19 pm (UTC)
That genological idea for visiual works is awesome. I would love something like that and it would definitely help in proving my ownership I think.
(no subject) - (Anonymous) - Apr. 25th, 2008 06:29 pm (UTC) - Expand
I'm not too sure about the objection - arshes - Apr. 25th, 2008 07:20 pm (UTC) - Expand
Re: I'm not too sure about the objection - (Anonymous) - Apr. 25th, 2008 08:16 pm (UTC) - Expand
Re: I'm not too sure about the objection - arshes - Apr. 25th, 2008 09:23 pm (UTC) - Expand
Re: I'm not too sure about the objection - (Anonymous) - Apr. 26th, 2008 06:01 am (UTC) - Expand
Re: I'm not too sure about the objection - (Anonymous) - Apr. 26th, 2008 01:13 pm (UTC) - Expand
Re: I'm not too sure about the objection - (Anonymous) - Apr. 26th, 2008 01:14 pm (UTC) - Expand
(Anonymous)
Apr. 25th, 2008 08:03 pm (UTC)
Language doesn't address concerns
I've read some summaries of the bills and, although there are some slight improvements, most concerns from artists and photographers have not been addressed satisfactorily. "Diligent" searches remain undefined. Considering that the Copyright Office didn't want to define them, it's funny that the lawmakers are now trying to hold them to doing so.

These are my major concerns:

1. The bills favor the wealthiest of copyright owners. This isn't intentional, but the better known the copyright owner, the less chance that the work can be orphaned. For example, Disney's copyrights are fairly well known and not likely to be infringed, but less noteworthy artist works can easily be orphaned, especially when copyright notices are cropped out of the images. Requiring contact information on everything that could potentially be orphaned could conflict with privacy laws.

2. The bills turn the default state of all created works, published or unpublished, into public domain. Unless the copyright owner provides contact information for every created work, it can be orphaned. Diaries would have to have contact information on them to avoid being turned into orphan works (privacy laws could help). Even if contact information is provided, the minute a person moves, they would be obligated to update all that information every place where their works are displayed to avoid the potential of them being orphaned. This constantly risks orphaning a copyright owner's work. At least the old copyright system had terms where the copyright was not questioned.

3. The bills are overly broad. They have been designed to cover very specific needs, such as allowing the restoration a family photo without the permission of the photographer (copyright owner) who took the photo, or museums/educational institutions creating works from old photos and journals. These bills go far beyond the remedy for preserving this country's history. Considerable commercial abuse can occur because of limitations of when damages can apply. Both versions of the bills have very onerous language granting copyright protection to infringers who create compilations or derivative works, "Derivative works and compilations. This section clarifies that a user who qualifies under this section shall not be denied copyright protection in a compilation or derivative work based on the orphan work contained in the compilation or derivative work." This would allow an infringer to claim copyright on a clipart package or website compilation containing orphaned works. I don't think this would usurp the individual copyrights, but it does a compiler far more rights than should be tendered solely because that person collected orphaned works.

4. Clarification of Fair Use standards will provide the greater freedoms, for nonprofit organizations, to make use of orphaned works to preserve our country's history. This will solve the most pressing concerns that have been addressed about copyright orphans since nonprofit institutions have already been granted a wide latitude in this area. Even Marybeth Peters, the Copyright Office Register, has already noted that innocent infringements have not been strongly penalized: "In cases of “innocent infringement,” the court may reduce statutory damages to $200; for certain infringements by nonprofit educational institutions, libraries, archives and public broadcasters, the court may reduce the award to zero." The risk, for nonprofits, to use copyright orphans is very small and does not warrant the application of the overly broad statutes of these bills.

The bills take away some of the copyright protection that every copyright owner enjoys without providing anything in return. Registered copyrighted works are as liable to be orphaned as unregistered works if the owner does not ensure current contact information is in the registry. Unless somebody can profit from the orphan legislation, there is no reason to want to see these bills become law.

Richard Gagnon
goofoofighter
May. 9th, 2008 12:42 am (UTC)
Re: Language doesn't address concerns
You provide a lot of informative points here, and I thank you. However, in reply, the only thing I can offer is a question to how the proposed databases might work. To have to waltz into the Copyright Office and manually change the contact information on possibly hundreds of works would be time consuming for not only yourself, but for whoever else might also to be there waiting to do that same thing. However, if there is an all-at-once option to change your contact information, it may not be so bad.

Thenagain, I still am a little lost as to what this bill really entails... I see titles such as "private and public databases," but that in and of itself doesn't really explain to me how it's supposed to work. Once these databases are expanded on, then I would worry about how contact information is updated. Knowing how the database works might even help to shed light on the "diligent search."

But who knows when these things will be outlined.

I apologize if I am misunderstanding or am misinformed. Feel free to correct me if this is so. xD
(Anonymous)
Apr. 27th, 2008 07:18 am (UTC)
For the few you may care...

Here is some light reading...
Here is the bill introduced last week to BOTH the US House and Senate.


H.R. 5889 (20 pages)
http://www.asmp.org/news/spec2008/HR5889draft.pdf

kinzokutaka
Apr. 29th, 2008 01:53 am (UTC)
Orphan Works Act
Thanks for the updates! Have a good birthday this week!
(Anonymous)
May. 2nd, 2008 02:43 am (UTC)
Orphan Works Bills
These bills seem like really bad news for any and all creative people. How are we supposed to protect our work? I'm starting to read through the actual text of the bills and will be passing an email around to all my creative friends asking them to call or email their representatives and denounce these bills.

Here are links on THOMAS to both bills:
HR.5889 Orphan Works Act of 2008 (Introduced in House) (http://thomas.loc.gov/cgi-bin/query/D?c110:2:./temp/~c110bexg1r::)
S.2913 Shawn Bentley Orphan Works Act of 2008 (Introduced in Senate) (http://thomas.loc.gov/cgi-bin/query/D?c110:1:./temp/~c110bexg1r::)

Read through the actual text of the bills and decide for yourself.
It seems, that your career may depend on it.

-Aaron
(Anonymous)
May. 13th, 2008 01:26 am (UTC)
Re: Orphan Works Bills
So... you already know you're going to tell everyone you know to denounce those bills. But, out of the goodness of your heart (or just for form's sake, maybe) you'll at least wait until you finish reading the bills before getting the Denunciation Express rolling.

Boy, I love people.
kayjkay
May. 8th, 2008 04:24 pm (UTC)
Question... do you believe this could be a potentially big loophole?

No award of damages may be made if the user is a nonprofit educational institution, museum, library, archive, or a public broadcasting entity and such user can demonstrate that the infringement was not performed for direct commercial advantage; the infringement was primarily educational, religious or charitable in nature; and, the user promptly ceased infringement after receiving notice. Proceeds directly attributable to the use may be awarded to the owner.

If it's for non-monetary gain, it seems like any individual could copy your work and display it, as long as they weren't selling it.

(Anonymous)
May. 8th, 2008 07:19 pm (UTC)
Yeah, I think that sounds like a potentially huge loophole, and it's the paragraph that frightened me the most.

People already find it easy enough to establish religions and non-profits with ulterior commercial motives. It would be too easy for people to be able to back out of damages by 'proving' their cause to be religious or educational. And what constitutes a commercial gain? Is it just any money made? Or is it money made with a specific type of purpose in mind?

So, if a so-called religion or church picked up one of my works as an 'orphan work' and sold it as a print or placed it on merchandise material sold to fund their religious efforts and church causes, would that be defined as not being for 'direct commercial advantage' since the infringement would be not a commercial profit but funding for their 'cause' or a primarily religious purpose, thereby denying me damages so long as they cease infringement upon notice? Or is any profit made deemed 'direct commercial advantage?'

The idea of any non-profit potentially using what they might think of as orphaned work really scares me. There are a lot of icky, scary non profits out there who are wolves in sheep's clothing who I do not want taking advantage of my artwork nor anyone else's without express permission first.

I have no problem doing free charity work for legit causes in which I believe (and I have done so with certain stipulations), but there are soooo many non-legit non-profits out there, and I think this type of bill could encourage more. Why pay for artwork, photography and design when you can get it for free if you call yourself a non-profit?
(no subject) - (Anonymous) - May. 13th, 2008 01:33 am (UTC) - Expand
(no subject) - s8venus - May. 9th, 2008 08:25 am (UTC) - Expand
(no subject) - (Anonymous) - May. 13th, 2008 01:35 am (UTC) - Expand
(Anonymous)
May. 8th, 2008 04:26 pm (UTC)
well done
nice work, man
(Anonymous)
May. 8th, 2008 05:36 pm (UTC)
What is the motivation of this bill?
I agree with IceFox wholly - should my creative works be allowed to be used, without my permission, just because it's for a non-profit, church, or school? NO!

In addition to that point, There are a couple obvious things here that I have not seen addressed. What is the motivation for this bill? To me the only motivation seems that non-creative businesses want to profit off of artwork that is not theirs.

I'm not buying the line that states,

“This legislation will help bring together potential users and owners of orphan works,” said Leahy. “But also as important, it will allow the public to view works that may remain orphaned. A Vermonter can restore a family photograph from three generations ago, even when the original photographer is no longer available to give permission. With this bill, we can preserve important parts of our personal and national heritage, without giving a free license to infringe on established copyright protections.”

My interpretation of this is that it will open and encourage opportunity for outright theft of another person's creative property, and the infringer will know that the recourse, if the artist actually tracks them down and takes them to court, will be minimal.

If I were a moral-less profiteer, what would stop me or anyone from immediately opening a fine art print store, stealing millions of images from Flickr, and selling the prints? If the artist is not allowed penalties beyond the value of the work, that means I only have to pay the artists licensing fees if they go through the trouble of taking me to court, and only pay about what I would have to before I stole it.

Sounds like a win-win for me, if I were a crook. I'm not, but I know some, and don't want them stealing my work for their profit. I believe very harsh penalties should be imposed for blatent infringement of another's creative works.

Will someone please explain to me what
"hundreds of thousands of so-called “orphan works” – works that may be protected by copyright, but whose owners cannot be indentified or located – are collecting dust"?

What is the real motive here?
(Anonymous)
May. 13th, 2008 02:46 am (UTC)
Re: What is the motivation of this bill?
"I agree with IceFox wholly - should my creative works be allowed to be used, without my permission, just because it's for a non-profit, church, or school? NO!"

Which probably makes it really good that that description has almost nothing to do with the actual bill. You will look in vain for anything in the bill that you have permission to do "just because it's for a non-profit, church, or school".

"There are a couple obvious things here that I have not seen addressed. What is the motivation for this bill? To me the only motivation seems that non-creative businesses want to profit off of artwork that is not theirs."

This could be because your reading comprehension (as demonstrated by your post and the numerous gaffes therein) is extremely low and has resulted in the stunting and calcification of your mind. The motivation is the existence of a very large category of orphan works for which either there are no surviving rights-holders anymore, in which case the work is unusable by anybody and does no one any good, or the rights-holders cannot be found, which means the rights-holders are still not getting paid.

"My interpretation of this is that it will open and encourage opportunity for outright theft of another person's creative property, and the infringer will know that the recourse, if the artist actually tracks them down and takes them to court, will be minimal."

Too bad your interpretation is not based on the facts. In order for any work to be considered an "orphan work", the prospective user of that work must perform a diligent good-faith search for the rights-holders, and that search must come up empty. If such a search is performed, then the user is not liable for statutory damages should the rights-holder be located, but the rights-holder is still entitled to "reasonable compensation", defined as the amount of compensation for the use of the work that would have been agreed upon between the rights-holder and the prospective user had the negotiation taken place prior to usage of the work.

So what's your complaint? Are you saying that you're not interested in getting the actual fair market value of your work, you just want to try and sock someone for an absurd amount in damages? "The last time someone commissioned me for artwork for their website, I charged them $90 and a bag of Smartfood! But because you used my picture on your website without my permission (because I didn't provide any way for you to find out it was my picture) I'm gonna sue you for $150,000 and two bags of Smartfood!"
Re: What is the motivation of this bill? - (Anonymous) - May. 13th, 2008 02:47 am (UTC) - Expand
Re: What is the motivation of this bill? - (Anonymous) - May. 14th, 2008 01:51 am (UTC) - Expand
(Anonymous)
May. 21st, 2008 10:27 am (UTC)
you're one of the few sites to 'get it!'
thanks for the info... I've also written about this... have a look here: http://www.itwire.com/content/view/18308/53/
(Anonymous)
May. 28th, 2008 06:31 pm (UTC)
I wish you were in the real world.
See below title http://maradydd.livejournal.com/374886.html
Six Misconceptions About Orphaned Works


You do disservices to all that want important information on this future law. You hold yourself out to be the authority on the issues, yet you then say I am not an attorney, so don’t count on anything I say.

I think you are the FUD whom is seriously confused.

Before you discount me read the letter from an attorney below…whom for the record states the real issues.

Next this bill if enacted into law most likely will be unconstitutional and will be challenged by a copyright owner who has the financial resources to see it to end.

To all that read this, let me tell you I come from an experience that is real. I am in year 3 of a copyright litigation that, my legal bill now exceeds $500,000.00 USD. US copyright laws currently lack “MORAL RIGHTS”…. before any “ORPAN WORKS LAW” should be considered the copyright laws need to address at least “Mandatory Attribution” bc I don’t think that moral rights can be enforced by law.

My case involves thousands of images that were marked with my “CMI” embedded into each and every image, with metadata….client removed said data, and then licensed my images to hundreds of third parties who then licensed my images to thousands of additional third parties under their “Affiliate Marketing Programs”

So if you are an artist and are concerned with your artwork then you better be concerned with this proposed legislation, and the impacts it will have on your ability to sustain yourself.

As an aside, although I was the copyright owner, I was the defendant in this lawsuit. I was forced to incur $500,000.00 USD in legal fees to protect my copyrights. As a result I now have thousands of images being used by thousands of people whom are all using my images to make money….they have not paid one red cent for these assets…I can not pursue each and every one of them….and those that I do can claim as a defense that the work is either in public domain or an orphaned work, or that it was an innocent infringement.

How many of you readers have the kind of USD it take to protect your copyrights, even under the laws as they now stand? If the orphan works law passes as now proposed it will cost more to protect your rights both in real dollars and in your personal time, and emotions.

Propet USA v. Lloyd Shugart WD WA. Federal Court

Lloyd Shu
( 54 comments — Leave a comment )

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