Don’t Believe the Hyperbole, There’s No Orphan Works Law Before Congress (Updated)
I’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- It would affect all visual art: drawings, paintings, sketches, photos, etc.; past, present and future; published and unpublished; domestic and foreign.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
The 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.