Thursday, May 29, 2008
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ALERT: The Orphan Works Act
Evidently, large parts of  copyright--as we know it--will be endanger if the Orphan Works Act, now working its way through  Congress, gets passed.


Here's the link to the "Orphan Works" section of the U.S. Copyright
Office...it includes the Federal Register Notice and comments, reports,
testimony, and other information about the bill.
http://www.copyright.gov/orphan/

Here's how the new law will work: you have a wonderful image on a 
website you designed.  You even registered your copyright of your 
image with the library of Congress.  But under the new law, you might 
as well not bother.  Unless you register your image with multiple 
commercial databases, a corporation can claim that the work is 
"orphaned" and they can use it any way they like.  The fact that you 
registered your copyright with the Library of Congress means nothing, 
and if you don't like it, that's just tough.  They can claim your 
image, and there's nothing you can do.

Here's the link that someone sent me that prompted my concern:
http://capwiz.com/illustratorspartnership/home/



thanks,

Karen

Educational CyberPlayGround



----- more info ---

US Orphan Works Bill Links
*Why the Orphan Works Act is Uncle Sam's Thieves' Charter*
<http://www.epuk.org/Opinion/848/uncle-sams-thieves-charter>

The proposed US Orphan Works Act would dramatically
shift the balance away from copyright holders, in
favour of those who would like to use creative
argues EPUK moderator Tony Sleep.
Imagine this: anyone in the USA can use your copyright
work without asking, and should you somehow find out
they've robbed you, they can escape all legal liability
by claiming they didn't know who they were stealing
from, and then only paying you whatever they consider
reasonable.
On Thursday the 'Shaun Bentley Orphan Works Act of 2008'
was placed before the US Senate and House of Congress.
Ostensibly intended to permit the legal use of orphaned
works ­ works whose copyright status and ownership
cannot  be traced ­ the bill will have these astounding
consequences for photographers around the world.
If this Bill passes into law as it is currently written,
it will potentially strip copyright control from every
photograph that has not been registered with the
privatised commmercial registries that the Bill
proposes to create. It allows infringers the defence
that any work that is unregistered with these agencies
is an orphan and may be used.
Should the copyright holder subsequently find out about
the usage, they must send a written notice to the user
of the image who is then obliged to pay a 'reasonable'
amount. In practical terms all other legal redress for
infringement is removed.

Two-tier nature of US copyright law
Although the Bill provides for other means of
establishing ownership that would disallow the 'orphan'
defence, such as metadata, databases and context, the
real problem lies in the two-tier nature of US
copyright law.
At present, international copyright law is defined by
the Berne convention which makes copyright purely a
passive right : if you create something, you own
copyright by right, without having to do anything, and
it is up to would-be users of your copyright material
to trace ownership and negotiate usage.
The Bentley Bill stands this principle on its head by
requiring the creator to take costly and time consuming
steps to obtain registration, and by limiting liability
for infringement for any unregistered work that can
plausibly be described as an orphan. Whilst the USA is
a signatory to Berne and cannot diverge from its
principles, supporters of the Bill claim that copyright
remains passive, it's just that if you want the
protection of legal remedies you may optionally
register work.





*Orphan Works bill introduced in US*
By John Watson // April 25th, 2008
http://photodoto.com/orphan-works-bill/
There has been a lot of discussion and a lot of fear
among photographers regarding potential orphan works
legislation.
A major problem with current copyright law is that
it does not provide a way to use a creative work that
has been abandoned (no entity can be found to claim
ownership). The premise behind an "orphan works"
addition to copyright law is that it would provide
a means for anyone to make use of copyrighted
material that no longer has an owner.
It works by limiting damages that can be claimed if
the work truly falls under orphan works protection.



*Oppose the Orphan Works Act of 2008*
<http://drawn.ca/2008/05/13/oppose-the-orphan-works-act-of-2008/>
By now many of you are already informed about the
proposed Orphan Works Act being introduced to the
U.S. house and senate. For those unaware, this
legislation, if enacted, can effectively undermine
and dismantle your existing copyright protection.
Currently, copyright is granted the moment a work is
created. This new Orphan Works legislation proposes
a change in U.S. copyright that would (indirectly)
require artists, illustrators, photographers, and
any creative individual to actively maintain and
defend their copyright by registering each and every
work with privatized registrars. Failure to do so
would leave everything you've ever created as an
artist up for grabs by anyone who wanted to copy,
reproduce, create derivative works of, or flat out
steal your work since the act defines an "orphan work"
as any work where the author is unidentifiable or
unlocatable, and applies to both published and
unpublished works, U.S. and foreign, regardless of
age.
This is completely contradictory with international
copyright standards and is ethically, logistically,
and financially bonkers.






*Orphan Works - Beyond the U.S.*
Yesterday, I attended a lecture presented by ALAI and
hosted at the Access Copyright office on orphan works.
The speaker was Willem Grosheide, a professor from
the Netherlands.
This was a very interesting discussion, especially in
light of all the activity in the U.S. surrounding their
Orphan Works legislation. Here are my notes:
http://blog.juliannayau.com/2008/05/14/orphan-works/


*Photo Advocates Divided Over Orphan Works*
May 08, 2008
By Daryl Lang
<>
As the orphan works copyright legislation advances
through Congress, it has exposed a split among photo
associations. With their ranks divided, professional
photographers have lost whatever lobbying power they
might have had as a unified force.
On one side is the
American Society of Media Photographers (ASMP),
the Professional Photographers of America (PPA),
and stock photography companies. After years of
lobbying against the orphan works amendment, these
groups are resigned to the idea that it will probably
pass. Their strategy is to work with legislators to
get concessions for artists added to the law.
Taking a different tack are the
Advertising Photographers of America (APA),
the National Press Photographers Association (NPPA),
and others who have lined up behind the
Illustrators Partnership. They say any orphan works
law will diminish their rights, and feel their voices
were left out of the negotiating process. They have
stirred up a vocal following with an online advocacy
campaign.
Other groups have differing stances, including the
Stock Artists Alliance (SAA), which urges a more
tightly drafted bill, and Editorial Photographers (EP)
and the American Society of Picture Professionals (ASPP),
which have not announced any position.





*How Will the Orphan Works Bill Affect Ownership of Your Art and Written Work?*
by Mary Emma Allen on May 9th, 2008
QuiltingAndPatchwork.com
If a proposed law, H.R. 5889,
The Orphan Works Bill of 2008 passes the
U.S. House of Representatives or  S. 2913,
The Shawn Bentley Orphan Works Act of 2008, passes
the Senate, will your images, photos, artistic work  and
authored works  be in danger of becoming public property?
Apparently, the infringers just have to indicate they
can't find or couldn't contact the owner and will have
free use of much written and artistic work.
In a radical departure from existing copyright law and
business practice, the U.S. Copyright Office has proposed
that Congress grant such infringers freedom to ignore the
rights of the author and use the work for any purpose,
including commercial usage. In the case of visual art,
the word "author" means "artist."
(From Overview at Illustrators Partnership of America)
The House Bill already has passed the House Judiciary
Committee.
For more information on how this affects you, the artist,
photographer, painter, designers mall and home business
owner, visit the Illustrators Partnership of America
web site.
Another source of explanation of "Orphan Works" and the
consequences to authors and artists if one of these
bills becomes law is at Public Knowledge.

"Orphan Works" are copyrighted works - books, music,
records, films, etc - whose owner cannot be located.
(From Public Knowledge)


*The very basics on this legislation:*
Currently under US copyright- the only legal way to use
someone's work (whether you have officially filed for
copyright with the US copyright office or not) is to
find the copyright owner and negotiate for the use.
If you can't find the copyright owner you can NOT legally
use the work. If the proposed current legislation passes
as it is now written, that will change.
These proposed pieces of legislation will allow for
someone (a person or a business) who has done a "search"
(which is not clearly spelled out in the legislation at
this point as to how long and what the search will need
to entail) and if they can't find the copyright owner,
they will be legally allowed to use or infringe the
copyright (i.e. use your work). This will hold for artwork,
music, family photos, films, essays, poems, etc.
You don't lose your copyright, but your work will be able
to be legally infringed under these pieces of legislation
if your work is deemed to be orphaned.
What has prompted this legislation you may ask? Libraries
and other educational institutions have works in their
collections that they would like to use the copyright for
educational purposes and presently they can not find the
copyright owners in question. Individuals want to be able
to retouch old family photographs and they too can't find
the copyright owner of the photographs (although I
personally know folks who have had their family photos
retouched without any problems). Documentary filmmakers
are also in need to have access to images and work that
they can not find the copyright owners of. These are
clearly very important issues that need to be dealt
with unfortunately both pieces of legislation allows for
anyone to infringe who has done a search and the proposed
legislation makes no distinction from educational use
v.s. commercial use. (i.e. an advertising company could
use your work under this proposed legislation if they
searched and could not find you).


There are other aspects of this legislation that are very
troubling that are contained in both bills:

1) the pieces of legislation calls for on-line databases
or what would be also called registries to be certified
by the Copyright office for visual artists to register
their work with. No where in the legislation does it say
they are to be free of charge to artists and although the
law does not mandate you to register your work with these
databases/registries- it is clear that these
databases/registries will be a key tool for those to use
searching for the copyright owners and a way for them to
justify they did a search,

2) the amount of damages that can be retrieved by the
copyright owner if they "surface"  and find their work
was deemed and used as an orphan work when in fact it
was not orphaned are very problematic and unacceptable

3) this law will essentially force musicians, writers,
visual artists, and others who want to protect their
creative work to officially copyright their work to
protect it-this will be too costly for most individuals
and small businesses.

4) and the very real problem that works will be
classified as orphaned works when in fact they are not
orphaned, etc..


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