Drastic changes to U.S. Copyright Law were introduced last week under the guise of freeing up orphan works. Orphan Works are images whose creators can not be found. The bill (HR-5889 and S-2913) would allow the use of copyrighted works provided they performed a diligent search for the creator. Supporters argue that at long last they'll be able to digitally restore their grandparents wedding photos or that the public library can display photos of town from 100 years ago without worrying about being sued by the copyright holder should they come forward.
What these supporters fail to realize is that many of these scenarios are protected under the "Fair Use" provisions of current copyright law. So to remedy a percieved problem they have proposed a law that would threaten the livelihood of every freelance artist working today.
Under the provisons of this bill creatives would have to register work with yet to be created private registries in order to prevent their work from becoming orphaned. Now while that doesn't sound terrible on the surface it is worth noting that photographers and illustrators produce a significantly greater amount of work than any writer or recording artist. The time alone required to register every drawing, sketch, painting and photograph would be prohibitive. Also, because these registries would be run by private companies, not the government, it is going to cost an artist money to register each image. Even if this fee is nominal, say in the range of $10, the cost of registering work could easily exceed $10,000 in one year. Furthermore, if there were multiple competing registries artist would be compelled to register their work with more than one, possibly all, of these companies. The cost of protecting the copyrights could easily exceed the annual income of many artists.
When introducing the Senate version of the bill, Sen. Leahy of Vermont claimed that this bill would not drastically alter current copyright law, that this would not be a rights giveaway. He claimed that only those performing a thorough search would be able to use Orphan Works. But what exactly constitutes a thorough search? Would a search of 2 or 3 registries be sufficient? An artist who registered their work with a competing registry would now have orphaned his work, despite his best efforts to follow the law and protect his work. How would the search work? Would it be a keyword search? Would it be similar to a Google Image Search? Anyone who has every used a search engine knows that overloading it with keyword makes it otherwise useless. And what would is to stop unscrupulous users of orphan works for diligently searching for the creators of works in places they know will lead them to dead ends? What would stop someone intent on stealing images from spamming or calling in the middle of the night to make sure calls to the artist went unanswered? In my experience, as an illustrator of little consequence, I have received many inquiries about creating work for free. If this bill were passed I would be forced not only to respond to each of these ridiculous requests, but keep track of them as well. Without clearly defining what a thorough search is artists everywhere will be at the mercy of publishers intent on exploiting work created by others.
Another feature of this bill that represents a radical departure from current copyright law is what happens when someone uses copyrighted material without permission. If this legislation passes those who illegally use a copyrighted work would have to pay the copyright holder only a reasonable license fee. Under the current law copyright infringers are responsible for not only paying a license fee, but are also liable for statutory damages and the copyright holders legal fees. Many artists are able to hire lawyers on contingency in copyright lawsuits because they will eventually be able to recover legal fees once the infringement is proven. This bill would render the fight for rights far more expensive than any potential award. Of course, this assumes that artists would devote the time and financial resources to fight for the rights of their work in a court of law. Most presumably, would not.
While the idea of freeing up work for use by public and educational institutions sounds noble, it is only a cover for allowing large corporations to profit from registries and steal copyrighted work with little consequence. The goals that supporters mention could easily be accomplished with legislation addressing and clarifying the Fair Use of provisions of the current law rather than crafting a law that represents radical departure from current copyright law.
If this bill becomes law, copyrights will be meaningless.
Now while this may not seem like a big deal to most people, copyrights are an essential part of any artists business. It is the copyright that prevents others from exploiting our work and profiting while we starve. If people are free to take the work of artists then in time there will be very few artists working in this country. Why would anyone be encouraged to draw, paint, sculpt, photograph or write if there were no chance to make a decent living with these incredibly rare skills?
In 2006 a similar measure was defeated. Let's hope history repeats itself. Please contact your elected officials in Washington and tell them to vote against this Orphan Works Act.
Far more information on this subject is available here and here.
(The image above is © John W. Tomac, 2008. All Rights Reserved. It is not an orphaned work of art.)
