Don’t Believe the Hyperbole, There’s No Orphan Works Law Before Congress (Updated)

United_States_Capitol_-_west_frontI’ve been seeing scare tactics going around various comic artists over the past couple of days concerning an “update” to US Copyright law as a new act, and the reintroduction of legislation known as the Orphan Works Act. According to the misinformed postings (the original posting has been taken down, I am looking for another example) and on a YouTube video, the legislation would:

  • The Next Great Copyright Act” would replace all existing copyright law.
  • It would void our Constitutional right to the exclusive control of our work.
  • It would “privilege” the public’s right to use our work.
  • It would “pressure” you to register your work with commercial registries.
  • It would “orphan” unregistered work.
  • It would make orphaned work available for commercial infringement by “good faith” infringers.
  • It would allow others to alter your work and copyright these “derivative works” in their own names.
  • It would affect all visual art: drawings, paintings, sketches, photos, etc.; past, present and future; published and unpublished; domestic and foreign.

Well, I’m here to dump so cold hard truth in front of you. The above? That’s all bullshit, not true at all. Not even close.

The first sign to me that the above was crap was the fact the post references that this is a law before Congress, but has you contact the US Copyright Office, instead of Congress. The video referenced admits there’s actually no legislation before Congress, there’s no text to actually see. The Copyright Office is doing their job, writing a report, and they are asking for input from individuals. There is no legislation, this is akin to a brainstorming project. This happens every day in government, there’s nothing unusual here and also nothing to get whipped up about. Reports go nowhere every day.

Here are the facts.

On June 4, 2015 the United States Copyright Office released a report on orphan works and mass digitization. The report:

…documents the legal and business challenges faced by good faith users who seek to use orphan works and/or engage in mass digitization projects.   It provides a series of legislative recommendations that offer users a way forward out of gridlock, but also take into account the legitimate concerns and exclusive rights of authors and other copyright owners.

The report also:

With respect to orphan works, the Report provides draft legislation that draws upon the Shawn Bentley Orphan Works Act passed by the Senate seven years ago, albeit with some updates and changes that reflect intervening developments and public discussions.

You can read the full report here. Before getting riled up, actually read the report and see for yourself what it does. The report looks at the 2006 and 2008 Orphan Works proposed legislation (I’ll get to that in a bit). It also discusses Fair Use, Google Books litigation, and various experiences with the issues of copyright around the world. The executive summary sums it all up nicely:

As the Supreme Court reaffirmed in 2012, facilitating the dissemination of creative expression is an important means of fulfilling the constitutional mandate to “promote the Progress of Science” through the copyright system. This Report addresses two circumstances in which the accomplishment of that goal may be hindered under the current law due to practical obstacles preventing good faith actors from securing permission to make productive uses of copyrighted works. First, with respect to orphan works, referred to as “perhaps the single greatest impediment to creating new works,” a user’s ability to seek permission or to negotiate licensing terms is compromised by the fact that, despite his or her diligent efforts, the user cannot identify or locate the copyright owner. Second, in the case of mass digitization – which involves making reproductions of many works, as well as possible efforts to make the works publicly accessible – obtaining permission is essentially impossible, not necessarily because of a lack of identifying information or the inability to contact the copyright owner, but because of the sheer number of individual permissions required.

The short version? Some times it’s hard to get a hold of the copyright holder, and some times there’s a hell of a lot of people that need to be contacted.

The report has SUGGESTIONS for legislation. On page 8 those are:

  • Permit the Register of Copyrights to authorize CMOs meeting specified criteria to issue licenses on behalf of both members and non-members of the organization to allow the use of copyrighted works implicated by the creation or operation of a digital collection;
  • Apply only to the three categories of works noted above, with possible additional limitations based on works’ commercial availability or date of publication;
  • Give copyright owners the right to limit the grant of licenses with respect to their works or to opt out of the system entirely;
  • Permit the licensed works to be used only for nonprofit educational or research purposes and without any purpose of direct or indirect commercial advantage;
  • Establish eligibility requirements for a CMO seeking ECL authorization, including evidence demonstrating its level of representation among authors in the relevant field, the consent of its membership to the ECL proposal, and its adherence to standards of transparency, accountability, and good governance;
  • Provide for the negotiation of license rates and terms between the CMO and a prospective user, subject to a dispute resolution process;
  • Require the parties to negotiate terms obligating the user, as a condition of its license, to implement and maintain reasonable digital security measures controlling access to the relevant works;
  • Require the CMO to collect and distribute royalties to rightsholders within a specified period and to conduct diligent searches for non-members for whom it has collected payments;
  • Provide for the disposition of royalties remaining unclaimed after a specified period;
  • Include a provision expressly preserving the ability of users to assert fair use in connection with mass digitization projects; and
  • Sunset five years after the legislation’s effective date

1024px-Copyright.svgThe three categories of work mention are: 1) literary works; 2) pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to literary works; and 3) photographs. A CMO is a “collective management organization” which would represent copyright holders in those three categories. Copyright holders would be able to opt-out of it as noted in bullet point three.

The short version. There’d be one group you could go to so that one can figure out who owns what copyright, get permission, and pay whatever fees. Anyone can opt-out of it. It would also be a pilot program, not some permanent thing.

Unlike what the video says, and has been claimed, there is no forcing anyone to participate in some program, and there’s no loss of your copyright unless you register everything and anything. Things remain the same, you can control your own copyright, or you can opt-in to the CMO, under the suggestions made in this report. Keep in mind. THERE IS NO LEGISLATION CURRENTLY BEFORE CONGRESS.

I work in advocacy, and it makes an organization/individuals look foolish when they rail against something, when that something hasn’t been laid out. There is a “notice of inquiry” where the Copyright Office wants to hear from you about their report and suggestions, not some legislation that does not exist, and especially not about a misunderstanding of what those suggestions are.

What is the 2008 Shawn Bently Act S.2913, aka the Orphan Works Act? The legislation was last introduced by Sen. Patrick Leahy (a staunch supporter of the MPAA and Hollywood) and died when it moved to the House. This is the summary:

Limits the remedies in a civil action brought for infringement of copyright in an orphan work, notwithstanding specified provisions and subject to exceptions, if the infringer meets certain requirements, including proving that: (1) the infringer performed and documented a reasonably diligent search in good faith to locate and identify the copyright owner before using the work, but was unable to locate and identify the owner; and (2) the infringing use of the work provided attribution to the owner of the copyright, if known. Requires a search to include methods that are reasonable and appropriate given the circumstances, including in some circumstances: (1) Copyright Office records that are not available through the Internet; and (2) resources for which a charge or subscription is imposed.

Limits monetary compensation to reasonable compensation for the use of the infringed work. Prohibits such compensation if the infringer is a nonprofit educational institution, museum, library, or archive, or a public broadcasting entity and if the infringer proves that: (1) the infringement is performed without any purpose of commercial advantage and is primarily educational, religious, or charitable in nature;and (2) the infringer ceases the infringement expeditiously after receiving notice of the claim for infringement. Allows injunctive relief to prevent or restrain infringement, subject to exception and limitation.

Directs the Register of Copyrights to: (1) undertake a process to certify that databases are available that facilitate searching for pictorial, graphic, and sculptural works protected by copyright; (2) report to the House and Senate judiciary committees on the implementation and effects of certain amendments made by this Act, including any recommendations for legislative changes; and (3) report to those committees on remedies for copyright infringement claims by an individual copyright owner or a related group of copyright owners seeking small amounts of monetary relief.

The legislation was opposed by groups on both sides of copyright. Some felt it made infringing easier, others felt that “reasonably diligent search” wasn’t defined well enough. What it didn’t do was rewrite copyright law as we know it. While flawed, the legislation was an attempt to make it easier to contact copyright holders to get permission or pay for permission. You can read the full legislation yourself.

Really in the end. The initial video and posts that started this response are hyperbolic and dangerous in the lack of facts and misrepresentation of the truth. The fact they have been shared thousands of times and the video watched almost 40,000 times is sad in that it uses scare tactics devoid of reality, and misrepresents how government works. The lack of the basic understanding about the legislative process by many is apparent, and appalling.

Below is a refresher of the basics, but the lesson here is, before you get worked up about legislation, do some research and come up with your own conclusion. Don’t take others at their word. Knowledge is power.

Update: For those interested in the issue and want to learn more about the actual problems with the Copyright Office’s proposal, TechDirt has a nice breakdown that shows the general issues. It also reiterates what I wrote above that this does not actually change copyright law as stated by others, and it is not legislation before Congress, etc.

Update 2: Surviving Creativity has a great podcast on the subject that includes folks who work in the comic industry and one is a lawyer.


  • “Well, I’m hear to dump so cold hard truth in front of you.”


  • Nice breakdown, but I have a hard time figuring out which side to believe, and I’d rather err on the side of “OUTRAAAAAAGE”, to make sure Congress & the Copyright Office understands that any kind of legislation that hurts small business and independent contente creators is one of the dumbest moves they could ever possibly make.

    • Totally fair. All I ask is to read what you can. The bullet points of the proposal can be found on page 8 of the document, and the TechDirt article provides more background. Do your research is all I ever ask.

      I will absolutely admit the proposal has flaws. But it does not do what’s claimed, not even close. It does not circumvent copyright law, unlike say the TPP, it just creates a system to make it easier to find rights holders, and even then that suggestion is limited and not mandatory.

  • I don’t think it’s Hyperbole (Outside of congress being involved.) when the people against it have much more validity in their fear because of how ludicrously flawed this is. Their fanaticism is backed up by many of their experiences with the unethical dealings with the groups who are supporting stuff like this.

    What’s happening is in between what’s described here, but the realities of it are seen in the cries from content creators. This is not a good thing by no means, that’s something I think many should agree with on a common sense level.

    • Lets look at the claims:
      1) This is legislation – FALSE
      2) This would rewrite copyright and supersede current law – FALSE
      3) This would create an outside private company to manage copyright – FALSE (and government can’t cede governmental authority to private businesses)
      4) This would take away your copyright unless you register with the above company – FALSE
      5) It would “orphan” unregistered work – FALSE
      6) It would allow corporations to use your work without paying you – FALSE

      So, what’s not hyperbole? The claims being made are just not true on any level.

      • But you believe Bills are passed fairly and not through lobbyism? You claim it’s false but from what I read from the information and analyzing both points of view, it’s definitely not false, it;s rather vague and done so intentionally. You see with things like this they never directly imply intentions unless you read between the lines (I.e. SOPA, CISPA, etc.)

        These type of things start out exactly the same. They will never say “We want to hurt you.” This started out the same way as CISPA and other things like it and it, once again does not make it clear “I want to hurt you.”

        Gee, who am I going to believe? The person being disingenuous, or the nutjob with personal first hand experience with the proposed lobbyist parties involved?

        • I work in politics for a living. I see it first hand. I know what I’m talking about. I was on the front lines fighting against CISPA and SOPA. This is not CISPA or SOPA. If you want to get pissed and fight legislation, go look at the TPP.

          I’ll reiterate it again, there is no law, there is a report, and the suggestion mentioned within the report are not what is claimed. I have read the report, I read the previous legislation. I know what I’m talking about, again, do this for a living.

          • I read the same report. You know what I see? History repeating itself. What really makes this different? I can recall having similar debates regarding Net Neutrality, the TPP, SOPA and so fourth where people make similar claims UNTIL things get moving.

            Explain to me, as a neutral party, what makes this significantly different.

            • First, in the case of SOPA/PIPA it was actual legislation. Second, in the case of Net Neutrality it involved the FCC who has the power to make those rules, as well as possible legislation. The TPP is currently being negotiated in secrecy, so it’s only hearsay and leaks at the moment, which is troublesome.

              As far as the first two, I was there in the beginning, and worked directly with the major players until the end.

              This is a report with suggestions. The suggestions are NOT what they are being portrayed as. I have refuted the claims being made.

              If you have concern about the actual bullet points that are brought up, great! Write in with your thoughts. What has been claimed those points are is just false.

        • I’ll also say I’ve worked on both sides, on the Hill working in the Senate, and for advocacy groups. I absolutely know what I’m talking about on many fronts.

  • To call this a “hoax” is equally, if not more damaging, than the “hyperbole” of the video, as it discourages people from taking any action whatsoever when there is a very real, very clear call to share opinions on the Orphaned Works and Mass Digitization report, and current struggles that artists face in the marketplace with regard to copyright law. Already there is an almost pathological level of apathy with regard to people trying to make changes for the better in this country. If no one pitches in with their opinions, then it probably WILL become a bill before Congress. It’s easier to fight it now than it would be then. Telling people to basically calm down and ignore it is irresponsible, and demonstrates what could be argued to be a poor understanding of how our government works.

    • Where did I use the word “hoax”? I refuted the claims being made. There are issues with the bullet points. They are not what folks are claiming though.

      • Ok, I will grant that you did not use the word “hoax”. I suppose I just inserted it among “bullshit” and “not true at all” and “nothing to get whipped up about”, after the person who linked this to me used your article to support their claim that the report/proposed legislation is “nothing but a hoax”.

  • Hey Brett – You’re right – it’s not before congress yet but like any pre-cancerous growth most sane people take it seriously before it metastasizes and wiggles it’s butt in front of congress. The proposed legislation is shit towards artists and you know it.

    • Getting word in during the inquiry period is great. My point was and is, the proposed rules (there is no legislation) are bad for other reasons. Not what was thrown out there. There’s reasons to dislike this, just not the ones initially cited. Using them doesn’t help the cause, only hurts it.

      I have been on both sides. Being misinformed and citing false information gets you tuned out.

  • You obviously do not understand COPYRIGHT at all. VERY close to law,corporate operations. It’s hand and hand.
    The lobbying here is to PURSUE this. Just because it is not written. DOES NOT MEAN IT IS NOT IN THE WORKS. “brainstorming”? brainstorming fed us SOPA.

    You obviously don’t understand setting precedents.

    The only way it makes sense that you downplay this new introduction, is if your position “in the field” work is hand in hand with the lobbyists involved.

    Hushers like you are the media we’re fed while real thing is happening(99%,Ferguson,etc) when there is a valid point. read the Notice of Inquiry,–The-Return-of-Orphan-Works-Part-2—ARTISTS–LETTERS.html?soid=1102063090742&aid=DEeIBiwWgJ4

    Attempts to force orphan status onto works to ENABLE this. Much driven by foreign companies owned by USA corporations.
    Do your research on what COPYRIGHT ACT actually is, etc
    Then remember it has everything to do with law.

    There are just as many “letters” being written to support this idea by lobbyists with money PAYING people to submit multiple letters, it’s what corporations DO. a documentary by “yes Men” should help you. You’re too close to understand it.
    You know enough to be dangerous in hushing the public.

  • Brett – I’m not kind of calling you out on your bullshit – I’m TOTALLY calling you out on your bullshit! I played the part of ignorant interviewer and you either didn’t bother to watch the video or you have an alterior motive – everything that I asked that was incorrect was then corrected by the expert – Brad Holland and you know it. Really? This is you pointing out facts that are false? “Well, I’m here to dump so cold hard truth in front of you. The above? That’s all bullshit, not true at all. Not even close.” BULLSHIT – you have an ax to grind and you misrepresented the content of the video – all of the answers are made straight by the expert Brad Holland.

    • So you’re saying all of these claims are true?

      The Next Great Copyright Act” would replace all existing copyright law.
      It would void our Constitutional right to the exclusive control of our work.
      It would “privilege” the public’s right to use our work.
      It would “pressure” you to register your work with commercial registries.
      It would “orphan” unregistered work.
      It would make orphaned work available for commercial infringement by “good faith” infringers.
      It would allow others to alter your work and copyright these “derivative works” in their own names.
      It would affect all visual art: drawings, paintings, sketches, photos, etc.; past, present and future; published and unpublished; domestic and foreign.

      The post original linked to cited your video, which I did watch. I was critiquing the post linked to and those points above. So either your beef with people spinning your video, or you agree with the above. Which?

  • I have researched this at the Copyright office. Brad Holland in this interview was 100% correct: Here is the original transcript from the copy right office’s site of the original round table discussion discussing this: Her also is the original Bill proposal. The proposed Bill being contested: and here is the original inquiry from Sen. Orrin Hatch. At the copy right office they have posted the 2014 open letter from every major organization opposing this proposal and it is fro the exact reasons Brad Holland described.

    • They were talking about the actual Orphan Works legislation of the past, and ideas for the future. In the beginning I listed out a bunch of bullet points that were going around as to what it’d do. The claims were also this would circumvent ALL copyright law.

      What you linked to is actual discussion of what is written and being suggested. Not what it has been spun in to. And again, there is no proposed bill. It is a report, with suggestions.

      • So clearly the notes of Inquiry by the Association of Medical Illustrators (and I can just drag and drop the Recording Artists Association, and Film Directors etc. if you need a more dissent) stating the devastating effects of the CURRENT proposal did not appeal to your logic that this is a current problem. Their issues with it are the same as Brad Hollands. You still want to claim this is a hulabaloo about the old law??? You are uniformed.

        • It’s not quite true to what you’re saying, and the thoughts aren’t as straightforward as you’re saying. From the Association of Medical Illustrators’ submission:

          The Association of Medical Illustrators supports the principle of extended collective licensing under two circumstances: (1) where the repertory of works licensed collectively consists only of works authorized for licensing by each rights holder or (2) pursuant to a statutory license such as that for sound recordings provided under Sections 112 and 114 of the Copyright Act.

          Collective licensing of repertories containing only works authorized for licensing voluntarily by the author requires no change in existing law. Leading examples of such collective licensing regimes are the music collecting societies, ASCAP, BMI and SESAC, which offer blanket performance licenses on a non title specific basis and the Copyright Clearance Center (CCC), which offers blanket licenses on a non title specific basis for the secondary reproduction of literary works initially published in print format.

          So, in that case they do support such a registry, as long as it is voluntary. Guess what. In the report, the Copyright Office says it should be voluntary. In other words, they agree with this specific suggestions (again, there is no legislation or bill).

          • I guess I’m confused then… If a creator wants to register something to make it available for licensing through this hypothetical system, what’s the difference between that and the licensing system we already have in the private sector? We *already* have licensing institutions for artists that want to do that. We also have Creative Commons and their copyright variations.

            The heart of this proposed idea seems to be that it’s too difficult for businesses to do actually work to get permissions. Or actually hire artists to generate original work.

            I’m not sure why we need yet another agency to do what’s already being done. There’s stuff out there. Already. Available instantly if they educate themselves on how to look for it. That seems to *really* be the issue. One doesn’t need to switch the default paradigm to put the burden on creators to license their stuff. If someone wants to use it, they can do due dilligence.

  • Pardon, here is the original Inquiry from Se. Orrin Hatch:

    • Brett knows the orphan works bill is bad for artists – which begs the question – who is he working for?

      Brett is a political consultant who resides in Arlington, VA. He grew up in Cleveland, OH and Buffalo, NY and attended the University at Buffalo, majoring in Political Science.
      Since then Brett has made his mark on politics working in various positions such as a Legislative Staffer for the Erie County Legislature, Special Assistant for Senator John Kerry, as the Database Administrator for Forward Together PAC, Database Director for Chris Dodd for President, and Internet/Database Director for Virginians for Brian Moran, and Email Deliverability Czar for Salsa Labs.
      In 2007 Brett formed 5B Consulting providing his expertise on database solutions, new media and email strategy.
      He’s a long time geek, reading comics since he was a child and learning to spell his name on an Atari 800. When he’s not working, he’s reading comics, playing video games and relaxing with a nice cup of tea.
      You can follow him on Twitter @bhschenker

      • I can tell you exactly who I do, and who I have worked for. I don’t hide any of that.
        Elected officials:
        Erie County Legislature (2001)
        Sen. John Kerry

        Mark Warner’s Forward Together PAC

        Erie County Legislature races
        Illinois coordinated campaign (Cong. Evans and Blagojevich for Gov, plus other races in the area at the time)
        Chris Dodd for President
        Brian Moran for Governor

        Advocacy Groups:
        Entertainment Consumers Association
        Also advised the National Restaurant Association

        Work for a tech company that sells software to Democratic political campaigns and liberal organizations/nonprofits and used to work for another tech company that does the same

        And out of the above, my agenda would be?

  • “So you’re saying all of these claims are true?”

    Yes we are.

    The fact that the report hasn’t yet made it to the floor, doesn’t magically take away the risks Orphan Works ideology will eventually pose to our collective interests and rights as professional image makers, comic book or otherwise.. If it were me, I’d rename this post or take it down, as it really doesn’t account for the full history and interests involved, and for that reason, is deceptive. Brad Holland, Cynthia Turner, and the Illustrators Partnership have been on the correct side of this issue since 2001.

    Write your letters folks, there’s 3 more days to voice your opinion,
    and comic book illustrators have the kind of specific stories of
    opposition they should hear !!

  • Alright, comments are going to be closed for this one. People have said their peace, presented their side, still really haven’t addressed what I’ve written, and turned to taking shots at me as if I have a dog in the fight.

    Do what you all would like, I ask everyone before writing, do your research, and make up your own mind as to what you think about the issue. Don’t follow me, or them blindly. Do your research, and links are above to help you out with that.