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Copyright Orphan Works Act — Are all Copyright Owners to Become Orphans?
© Cheryl Hodgson 2008 | Posted on July 15, 2008
Two bills introduced in the House and Senate in SB 2913 (the “Shawn Bentley Orphans Works Act of 2008, Senate Bill 2913 and H.R. 5889 (“Orphan Works Act of 2008”) threaten to dismantle copyright protection under the guise of protecting users of works whose owners can not be found. The burden is shifted to copyright owners, and all the benefits to those who steal from them. One way of reading the bills is “Steal now, pay a little, if ever caught.” One provision, already labeled the “Dark Archive” conjures up images of the need for Jedi intervention to prevent copyright protection from a permanent move to the “Dark Side.” Are copyright owners destined to share the same fate that befell Anakin Skywalker , better known as “Darth Vader?”
I am the current President of the California Copyright Conference, (“CCC”), and we are proud to announce a joint position paper with the Association of Independent Music Publishers (“AIMP”) on this important issue. The final report is the result of a collaborative effort from a panel of distinguished experts who bring together differing viewpoints on copyright matters. The unanimity of the voice with which they have chosen to speak underscores the reason all copyright owners should read and understand the issues. [View Report ].
Politics is not normally my business. However, badly written, politically motivated legislation that threatens the legal rights of our clients becomes my business–and yours!
Attorney Steve Winogradsky, Site and Bio , Past President of both the CCC and the AIMP concurs:
The Orphan Works bill has the potential to erode the protection that copyright owners have fought for over many years. It puts the burden on the copyright owner to find the offending parties and either negotiate with them without the remedies currently available to bring about reasonable compensation or bring costly litigation. In short, for copyright owners, the Orphan Works bill is a disaster.
The original premise of this legislation was to protect libraries, museums, and other not for profit users in efforts to digitize archives of materials for which owners could not be located. However, as drafted, the legislation goes much further and applies to any use of a copyrighted work including commercial users. In short, it creates an incentive to steal first, and pay later if caught! Policing infringing uses on the Internet is already difficult. This bill raises the bar and the burden on copyright owners to protect their works while reducing remedies.
Anyone could use a copyrighted work without permission or payment to the copyright owner, with reduced legal consequences. The user, if discovered and sued , need only claim a “diligent” search was performed to locate the owner. The details of such a search are to be disclosed only in later litigation, an absurd provision benefiting only infringers. Even if works are properly registered with the U.S. Copyright Office, copyright owners would lose rights to statutory damages and attorney’s fees and be limited to payment of “reasonable compensation.”
Many works are never registered with the Copyright Office, largely because Congress created automatic protection for all works upon creation. Owners of unregistered works are already sufficiently limited in their remedies, since, without a prior registration, a copyright owner suing for infringement cannot claim statutory damages or attorney’s fees. This legislation, if passed, could become the stage for a frontal assault on the rights of all owners by users who want to steal and pay-little-later.
On May 6, 2008, Marybeth Peters, Registrar of Copyrights wrote to Representative Zoe Lofgren of the Judiciary Committee, [View Letter] . endorsing this legislation and recommending elimination of the proposal to create a “Dark Archive.”
The so called Dark Archive would result from a provision in the House version that a Statement of Use be filed with the Copyright Office by the User of the Work, to be accessed by copyright owners only upon the terms and conditions of regulations it is to proscribe. As if a “Dark Archive” over which copyright owners must fight for access to is not bad enough, the Registrar in her recent letter advocates total elimination of filing a Statement of Use, i.e ., elimination of the Dark Archive completely.
The Registrar’s position of eliminating any such archive, leaving copyright owners to discover the existence and contents of “diligent searches” only in expensive litigation needs rethinking. Why not earmark private donations to the Library of Congress as a resource to implement a user friendly “Transparent Archive” system? The Copyright Office ignores the realities of the market place and places the rights of copyright owners at great risk.
The reasons cited in Ms. Peters’ letter are that it will be costly to administer and the filing will be too much to expect of unauthorized users. This position, if adopted, would leave copyright owners with no means of locating users relying upon the proposed statute other than sheer luck in discovering them, particularly difficult in the digital jungle.
The U.S. Trademark Office has done an amazing job over the last 10 years of making all files and contents available on line with the click of a mouse. The Copyright Office, while having made progress, is lacking in user friendly digital access beyond basic registration information. If the Registrar is determined to support for Orphan Works legislation, that support should include a request for public funding to support proper implementation of online access to the Dark Archive accessible from the date a Notice of Use is filed.
According to Ms. Peters’ letter the Dark Archive is unnecessary, based upon an assertion that sufficient safeguards are included elsewhere in the bill. These “safeguards” include: 1) the User must put a symbol or notice on the work; [Is this: “Hello I stole this.”]; 2) the User must assert the statute as a defense in any lawsuit [Comment: What lawyer won't be using this as a defense in every case where permission was not sought? ]; 3) The User consents to jurisdiction of the U.S. District Court. [This is nothing new, since copyright cases have always been in Federal Court since the 1909 Copyright Act. Further, when works are used on the Internet, acts of infringement are not local in nature] ; and 4) the Copyright owner is able to obtain copies of the “search” in court discovery [Short for: “Copyright owners have to sue to find out if a user even performed a search to justify taking the work without permission!”].
The legislation also includes a provision for Copyright Office certification of third party data bases as a source meeting search requirements. No standards are specified for certification of such data bases. While, the music industry can point to organizations such as BMI, ASCAP and SESAC as sources of information for publishers and copyright owners, even those databases are far from complete. Some industry groups such as photographers and visual artists lack such information and are likely to be the most vulnerable to abuse.
Ms. Peters also opposes this requirement as being beyond the expertise of the Copyright Office. If the entire universe of copyright owners must change on a dime to accommodate new legislation endorsed by the Copyright Office, then the Registrar should attend the party.
Ms. Peters’ letter leaves us wondering,
“Just whose interests does the Copyright Office have at heart?”
We urge all copyright owners to voice their written concern over the structure of the proposed legislation. Here is how. Contact the Senate Contact Your Representative
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