5/23/2008

Oppose the Orphan Works Act!!!

I am not normally this diligent when it comes to matters of the government, but I have found a reason to take action. The Orphan Works Act is a major problem plaguing the artistic community. This Act pretty much spells out that anyone can legally take you work (Artwork, photos, music, literature and so forth) and claim it as their own without your permission. NO INTELLECTUAL PROPERTY IS SAFE, NOTHING. I urge everyone to do their part and take action to make sure this bill is never passed, for it is a certain death to all artistic livelihood.
Now I had known about the Orphan Works Act for some time, but I was never really clear on what exactly this bill meant, until now. My good friend Andrew Wright recently posted on his blog, information on what this bill means, how it affects us and how we might hope to fight it. It takes a minute of your time to learn what could happen if this is passed. Even though this bill is unethical and unconstitutional, it is still a possibility and we must take action to safeguard ourselves.
It is enough to make me blog about it, and that is something.

To get to Andrew's blog post click this link.
-Dd

11 comments:

Pop-Monkey said...

Actually there seems to be a lot of misinformation and knee-jerk opposition to this issue without knowing all the facts. Artists seem to instantly think this is a bad thing, because of certain cherry picked "facts" about it. On the whole, it seems like a good thing for artists and will allow for the exposure of many "lost" works to the public and artists at large. Here's a quote from a very good article about the issue and a link to the full article.

http://www.eff.org/deeplinks/2008/05/release-orphan-works

"The Orphan Works legislation would help resolve those fears and, in the process, encourage the display and re-use of these “lost” works. Under the proposed law, individuals who would like to use an orphan work must put diligent effort into searching for the owner of the copyright in the work, based in part on best practices to be outlined by the Registrar of Copyright. If that search comes up empty, they can use that work. And, if at some future time the copyright owner comes forward to demand payment, the legislation requires the second author to negotiate with that owner in good faith to determine reasonable compensation for the use, and promptly pay that compensation.

And if the second author doesn't follow the new rules under the law and simply uses the work without making a diligent search? The copyright owner can sue them under the current rules and potentially obtain statutory damages of up to $150,000 per work -- just as they can now.

Congress also plans to certify searchable databases for visual works like photographs, graphic arts, and textile designs that will collect information about works and contact information for the related copyright owners. There are not “formalities” associated with these databases. No artist will be required to “register” with the databases, and failure to register will not result in it being considered “orphaned.” "

It's important to be fully informed about things like this before railing against them.

Dustin dArnault said...

See originally it was meant for this reason to release older works into the public. The problem is in passing this bill it leaves current artist open for attack. The article you put as a reference even stated that "minor changes” need to be made to the bill. One such as copyright databases must be free for everyone to use. This as I have read is not the case, and that the government (as of what I was informed) has left this decision to the third party.
The other problem is that the finder decided what is a "diligent search" so if there are a million registries out there, do you really believe some one will take the time to look over everything?
From what I understand you are required to register to clam ownership over the image. If some one created an image it is there’s end of story. No one but the original owner should be allowed to use this image period. Do not give people the chance to take advantage because I promise you most people will.

Pop-Monkey said...

But there won't be a "million" registries. There will be a few, certified by congress. Artists are not required to register (as many of the naysayers are claiming), and not registering does not automatically make your work orphaned (another cry of the opposition).

It states in the article that "the legislation prioritizes the search for the copyright owner". With the penalty for not performing a search being so high, companies will more than likely make damn sure that a work is available before stealing it. Especially since, even if they HAVE performed a dilligent search, yet the artist comes forward much LATER and stakes their claim, they can STILL be sued -- I don't think many companies are going to take that chance. It would be much easier and cheaper in the long run for them to simply hire another artist to create a new piece than to spend all the time and money performing the search and then potentially coughing up the dough when their search failed.

Sure, there are tweaks that need to be made, and artists need to help shape these changes, but I do not agree with the many freelance artists out there who have simply chosen to form a fear and distrust based reaction to this act without researching the matter and discovering the whole story. There are as many well-written articles out there in favor of this legislation as there are against it (maybe more, since some of the "anti" articles seem to be poorly constructed panic-attacks). It's very important to get both sides of the story in a matter like this before we rail against something that might be a huge benefit to the artistic community at large. This issue has become like one of those dreaded "chain letters", and is being passed from artist to artist for them to display on their blogs, websites, mass emails, etc, and I think very few of them have actually bothered to research the matter. It's a dangerous game to play.

Pop-Monkey said...

Two more good articles on the subject:
http://www.eff.org/deeplinks/2008/05/orphan-works-update-legislation-fair-copyright-hol
This one documents the evolution of the Act with all its addressed problems and corrections thus far. You can compare the original proposal to the Act as is stands now. Changes have been made, through effort and discussion, and it becomes clear that positive steps have been taken, while there are still changes that need to be addressed:
http://www.asmp.org/news/spec2008/orphan_update.php
And here's the Act itself, HR5889, as it was introduced in the House of Representatives on April 24, 2008:
http://www.thomas.gov/cgi-bin/query/z?c110:H.R.5889:

Pop-Monkey said...

The first two of those last links I posted are in error. Here are the correct links:
http://www.eff.org/deeplinks/2008/05/orphan-works-update-legislation-fair-copyright-hol

http://www.asmp.org/news/spec2008/orphan_update.php

Pop-Monkey said...

Sorry, but the comments box seems to not allow me to copy and paste the long web link addresses -- it keeps cutting the ends off.
Just go to http://www.eff.org and enter "Orphan works" in their search engine. The articles I was trying to link to will come up.

Dustin dArnault said...

Under the orphan rights act not registering, means your work is orphaned. The bill states that anything you make is not yours.
The potential offender decides what a diligent search is.
Think about the concept for a second, as of right now under the law anything you make is yours. It is automatically copyrighted. No one can use it with out asking you. Under this new law, if one of your sketches/doodles/ intellectual property are lost even if they are watermarked, signed, digitally encoded, if they are not on the registry some one can use it.
Under this Bill you must register every single work that you might post on the net with a third party registry for a fee. Don't you think this will harm bloging and online artistic communities? Now I can not post a sketch I did a minute ago because I have to have it registered with one of these databases. For fear of some one taking it and using it with out compensating the artist. I am a firm believer that if you give a person an inch they will take a mile. If you allow this loop hole for people to use anything they desire a lot of artist, writers, musicians will be cheated out of compensation.


http://capwiz.com/illustratorspartnership/issues/bills/?billid=11320236
http://capwiz.com/illustratorspartnership/issues/bills/?billid=11322171

Go hear to listen to some one explain the ramifications that this bill will have on artists.
http://www.sellyourtvconceptnow.com/orphan/orphan_works_information.mp3
http://www.sellyourtvconceptnow.com/orphan.html

As of right now the current copyright laws prohibit anyone from using your work with out consent right? Now if s person some where else sees an image they like and want to use it, even if they can not find the owner they are not allowed to use it period, for fear of the consequences. They still might and you would never know but they risk legal ramifications. Under this new legislation if some one sees an image wants to use it, preformed a "diligent" find that you happen not to be on that database they can legally use that image. (Keep in mind its not just art were talking about here but myspace photos, or music and even blog entries any kind of content.) They can use it with no legal ramifications.

Dustin dArnault said...

Blogger cut off the links from my post also. You can find my referneces on these two links
http://www.sellyourtvconceptnow.com/orphan.html
http://capwiz.com/illustratorspartnership/home/

Pop-Monkey said...

But there WILL be legal ramifications. If the original creator of the work steps forward at ANY time and claims the work as theirs, they are entitled to fair compensation EVEN IF the party who is using the image is able to prove they did a search for the image's owner. What constitutes "fair compensation" must be researchedb, but there is still the fear of legal action being taken against them. Even for images taken off the web, if they do not immediately take the item off and provide compensation as outlined by the Act, they are subject to the "No Electronic Theft Act", which outlines damages to be paid to the artist AND establishes criminal penalties for copyright infringement, even if no money has changed hands.

As it stands now, if you don't register a copyright on any work of yours, you are only entitled to their net profits from the infringement. They may be further penalized, but you won't be compensated for any statutory damages or legal fees incurred in taking action against them or , which often makes the whole thing not worth pursuing, especially if they made no money.

The terms of "determination of diligent effort" as outlined in the act as it currently stands, anyone attempting to use an image they did not generate themselves or whose creator is knows, must perform a very thorough search, which goes well beyond searching copyright databases. Honestly, the time and money involved in such searches seems prohibitive to the point that they're not going to take the chance of performing such a search simply so they can use some freelance illustrator's blog posting from his sketchbook. It's going to be much cheaper and quicker for them to hire their own artist to create exactly the piece they're looking for.

This is a complex issue, though, and I don't think it's starkly evil, as many are making it out to be. I think there is a lot of good that can come out of this (and I think that was the intent in the first place: to free up lost orphaned images from locked away archives, rather than to make it super-easy to screw over today's artists). There may need to be some tuning done to this Act, but I don't think it should be tossed out so suddenly. I'm going to keep researching the issue and looking into the matter from all sides, though.

Nicholas Wright said...

Dustin- I also posted part of this over on Andrew's site
-----
We cherry pick these points out because they are points that show we are going to get screwed should this bill go through.....
-------------------

pop- monkey-
you have in fact "dug up" some info...ALL OF WHICH I HAVE READ.

But I'm still not seeing where that info is saying to me, as an illustrator FT, feeding my family from my art, how this orphan works is a good thing....Are you out of your mind?... What constitutes a "diligent" effort? Have you pondered that question???

... about the databases, guess what? They will be privatized! Guess what? It will cost money to put your works on them. Guess what this is the lingo that many in favor of this legislation is spinning... guess what should this bill go through- The USofA will be in FACT, breaking an international treaty.

THERE IS ABSOLUTELY NO NEED TO CHANGE THE CURRENT COPYRIGHT LAWS. IF THE NON FOR PROFITS WANT MORE RIGHTS TO ORPHANED WORKS OUT THERE THEN THEY SHOULD PROPOSE AN AMENDMENT, BUT TO SIT BACK AND SAY WE NEED A COMPLETE OVERHAUL IS THE REAL KNEE-JERK REACTION HERE.

I pray that you are not a graphic artist in holding your view points as you will regret this support should the bill get passed. The Graphic artist guild and photography guilds stand to make a lot of money as they are seated in a position to get control of the databases, generating millions of dollars from fees. THIS IS NOT NEEDED.

ILLUSTRATORS- READ BETWEEN THE LINES- YOU ARE ABOUT TO GET SCREWED.
I'M PISSED.

MARK MY WORDS.
nwright

Pop-Monkey said...

Nicholas, I am neither supporting nor opposing this whole thing. I have found just as many articles espousing the positive aspects of this whole thing as I have negative. Much of what I have found is incomplete or misunderstood information, so I'm going to leave it to those well-versed in legal speak and copyright law to sort this out -- much of the opinion out there is decidedly not coming from knowledgeable sources, and I am not claiming to know any more on it than what I've read, which is polarizing and confusing.

The main point I'm trying to make is this Act was not designed to screw over artists. If that's a side effect, then that needs to be addressed, but it was designed with the intent to free up a LOT of lost artwork and photographs that libraries and museums are afraid to do anything with because they cannot find the copyright holders for the works.

As for the databases, It seems that it's entirely optional whether artists want to register works or not, and even if you dont, the databases are not going to be considered the only resources for searching. If you choose to do nothing, you are still under legal protection as long as you can prove a work is yours.