Orphan Works Act (2008)

[Roshak]

Hello All,

This topic may to some be considered spam or propaganda. I tried to make it not so as much as possible by providing sources of information ( the concept.org link is particularly useful) and reasoning. If there's something that you find off or would like further info leave comment and I'll correct it.

I would like to point out that this is a topic that is raising awareness to something rather serious being put before the U.S. Congress. While this may seem to have little concern to those outside the United States it does concern you if your an artist and as an individual when it comes to voicing your opinion on the matter.

Secondly if the moderators wish to move this to a better location, that is fine but I thought I post it here since this will be seen the most.

The bill before Congress is called the Orphan Works Act 2008. If that sounds familiar, its because it was introduced twice before of the same name (except for the date obviously) and failed. But this time, the bill is being rushed through to get signed and readied with minimal attention. And might a chance of passing.

To read the bill for yourself ( I know it can be confusing and its fairly long but it will serve you well to read it) go to the links below:

The Senate version
http://www.govtrack.us/congress/bill...bill=s110-2913
The House version
http://www.govtrack.us/congress/bill...bill=h110-5889

For the summary it works like this if its passed into law:

Any artwork you find in which you cannot identify the owner in a reasonable search is labeled as orphaned. This ranges for anything from a picture, drawing, digital art etc. (it would also apply to pictures you've taken or artwork you did before this law was passed). These are open to the public and to anyone who wishes to use them. They than can use it for their own means such as posters, books, documents etc.

The idea behind the bill state the following (This is an email response from my U.S. Congressman last week).

As you may know, Representative Howard Berman introduced H.R. 5889 on April 24, 2008. This bill would limit the remedies in a civil action brought for infringement of copyright in an orphan work if the infringer proves that the infringer performed and documented a reasonably diligent search in good faith to locate the copyright owner before using the work, but was unable to locate the owner. It was referred to the Judiciary Committee on April 24, 2008. H.R. 5889 is currently pending in this committee.

There are some key points I like to make:

First, it doesn't specify on what a diligent search is. Diligent in the dictionary means "Marked by persevering, painstaking effort". However there's little documentation or specifications that a person needs to do fulfill this requirement and can be easily loopholed.

Second, It can be used for profit. This means that a person can use the artwork I, and you, created for their own aims. While this happens with people stealing artwork on the Internet, this is for real life so if they can't find you, they can use it and without your consent ( the edited Senate bill seems to address this a little bit but not sufficiently in my mind).

Third, this isn't restricted to schools. If this was restricted to Educational purposes ( preferably single-use) and for free I would not have a problem. I think this would greatly benefit them and think that's how the whole bill got started. HOWEVER, this isn't restricted to them and is open to the public and is especially prone to companies trying to save a few bucks on artwork.

But your probably asking a couple of questions in which I'll address the most common I've seen:

Q: Doesn't the copyright protect your work so you can sue them if they use it?
A: That's exactly what this law would change. Since it would mean my work is orphaned because a person couldn't find me they could license for themselves. I would need to provide valid information that this was mine BEFORE the artwork was being used ( if you don't know about being used its all ready too late). You could get reasonable compensation but even that can be a stretch.
Also if its big corporation they're going to have a lawyer staff ready to tackle it and drag out the procedure which if your not rich is going to hurt you a lot for just one drawing.

Q: I live outside the U.S., why should I bother with this?
A: Because this affects ALL artists to a degree. If you want to do work in America you'll have to deal with this problem. Another is that other countries may get similar ideas and pass similar legislation.

Q: I'm not a artist, or a photographer. I'm a writer, so why should I be concerned with this?
A: Because if this passes it can be used as a stepping stone to further similar copyright laws for other created works. And you can bet your dollar there going to try to go for writer's next. Just think that the U.S. writers who did the Strike earlier this year would face another problem.

Q: I'm just a total-war fan or someone who likes these forums.
A: Perhaps you know an artist, or maybe one of your kids would like to be an artist in which case this legislation can hurt them quite a bit in building a successful art career. Even if you don't know anybody voicing your opinions about this can bring you more information and hopefully cause Congress to say "Quite a lot of people are questioning about this bill, we should probably review this more carefully."

Q: If you sign your work doesn't mean that its your work and people can't use it?
A: Yes...If you provide your full name, address, email and phone number. Artists (myself included) aren't going to ruin their image by putting all info for that would take away from the drawing.
Also even if we just sign our name or post our information on the back of the work there's no guarantee that the person wishing to use the work will find you or if they do see the information they can accurately see that's your real information.
Again it has to do with the diligent search in which the person can't find you. If they search for 2 days on Google that might count as diligent, but if your not on the Internet (like me and quite a lot people) than that effort is wasted.

Q: Why not just copyright your work?
A: That can get expensive when its everything you do. I don't think you need to copyright everything you create just because somebody doesn't want to do a long specific search or better yet actually pay for it.
We artists just like gamers, tv producers and the like all create things for the public to enjoy for a price. If we didn't, there wouldn't be very many people in the business, and you be seeing less Total War games or your favorite TV shows.
We create because we enjoy it and were passionate about it. You wouldn't think to skimp paying a Chef if he/she gave you good food would you? No. Same thing with artists, we provide a service that can be attained by payment.
And no were not all filthy rich. A few people sure, but most of us are just average people like you who do their job and live their lives.

By making our artwork "up for grabs" if people didn't search properly it hurts us a lot. Because it limits our Internet use where proper search can be problem because:

A) We don't use our real names
B) We don't give out our important information

So by doing that we could only post on the web copyrighted material which hurts because a few sites have talented and potential artists who want to learn new ideas, styles and get noticed. This is easier thanks to the Internet but by this bill it would severely damage it.

The reason I'm posting this on this gaming forum is because I want people to be aware of this potentially dangerous bill and if something similar is suggested where your from you can take action effectively.

I'm can't force you vote one way or the other nor do I want to, but I am asking you to write your concerns to Congress and tell this to your news stations, friends, family, political figures etc. Because the more the people know about this, the better, and it will provide what the bill sponsors and cosponsors don't want: attention.

If you've taken the time to read this I thank you for your time and hope you voice your concerns. And if you choose to do action for/ or against the bill that's even better and wish you best of luck.

Here are some good links to help you take action.

The main site for voicing your opinions on the bill
http://capwiz.com/illustratorspartnership/home/

(U.S citizens) to voice your opinion against the Senate Bill
http://capwiz.com/illustratorspartne...ertid=11389061

(U.S. citizens) to voice your opinion against the House Bill
http://capwiz.com/illustratorspartne...ertid=11389081

A good site and thread for up to date info and comments from artists.
http://www.conceptart.org/forums/sho...d.php?t=125355

(U.S. citizens) Your not an artist but have family member of friend who's an artist
http://capwiz.com/illustratorspartne...ertid=11333001

(U.S. citizens) Your not an artist and you don't know any personally.
http://capwiz.com/illustratorspartne...ertid=11350921

(International) You live outside the U.S.
http://www.illustratorspartnership.o...archterm=00267

New York Times article
http://www.nytimes.com/2008/05/20/op...prod=permalink

video excerpt of a discussion about Orphan Works.


An article about the bill
http://arstechnica.com/news.ars/post...find-home.html

(U.S. Citizens) If you like to vote FOR the bill (recommend writing your own letter though, because the form letter isn't very well done.)
http://www.publicknowledge.org/alertfax/1549

Updated Senate Bill (5/23/08)
http://www.illustratorspartnership.o...0of%202008.pdf

Basic Copyright information
http://www.copyright.gov/circs/circ1.html#cr

The main site for opposing the Orphan works bill. This will also contain the latest info.
http://www.owoh.org/

The Main points of opposition

1. The bill(s) will basically allow anyone to use a design for any purpose— without the copyright holder’s permission – after performing a vaguely defined ‘reasonable search’.

2. The bill(s) will allow an infringer to create—and copyright—a derivative work even if the copyright holder of the original design surfaces.

3. The bill(s) not only eliminate reimbursement of court costs and legal fees, but they also eliminate statutory damages which is the only thing that prevents rampant infringement.

4. The bill(s) require the implementation of a searchable visual arts database that does not currently exist, and yet are scheduled to take effect on the EARLIER of: January 1, 2013, or when the copyright office certifies the existence of at least two independent, searchable databases. Since there is currently NO reliable way to trace a piece of art, the effective date for this legislation should—and MUST— be tied to the implantation of these databases.

5. These bills were introduced on short notice and are being fast tracked for imminent passage without allowing the voices of the Creative Arts industries to be heard. This is a very serious situation for all visual artists— designers, photographers, illustrators, and art licensors— as well as the manufacturers who license and use our work. We respectfully request that Congress slow down this legislation until our voices can be heard.


Any questions or comments are appreciated and wanted. However, I want to keep this topic free of off-topic discussions, political differences, and flaming. Only people who offer something constructive aka anything but "That's a shame" or "There's democracy for ya".

I'll try to keep this up to date as much as I can.

Above all, read the bill for yourself and draw your own conclusions.

- Roshak

[Armatus]

This makes absolutely no sense, what about the people who flat out steal images??? What if the person never meant it to be online in the first place???

EDIT: shouldn't this be in the mudpit?

[Roshak]

EDIT: shouldn't this be in the mudpit?

Was thinking about putting in mudpit or Thema Devia but was torn. Didn't think the arts section would get enough traffic.

This makes absolutely no sense, what about the people who flat out steal images??? What if the person never meant it to be online in the first place???

Not sure what you mean. The bill (while based on a sound principle) doesn't make sense? Or the argument against the bill?

Update:

Graphic Arts Guild Opposes the Bill:
http://adistantsoil.com/blog/?p=2769

[scottishranger]

Moved to Mudpit!

AWAY!

[Armatus]

I guess the way I see it is that if I paint a picture and for the sake of simplication here convert it to digital format and upload it to my website. Someone then is able to download my work and then redistribute it with out any authorization in any way they see fit with no repercussions if I find out?

[Roshak]

I guess the way I see it is that if I paint a picture and for the sake of simplication here convert it to digital format and upload it to my website. Someone then is able to download my work and then redistribute it with out any authorization in any way they see fit with no repercussions if I find out?

In a nutshell...yes.

Again because it can't be really traced back to you (unless you have all your information on the site and in the image) they can use it without any penalty as the bill stands currently.

And even if you find out later, there's the problem with "reasonable compensation". You might say this is worth a lot with the other person saying not even close ( Some Corporations and people think they should get it fairly cheap or for free which is beyond wrong). So that can be problem, plus if its a major company who took it, you better have a good lawyer.

This would also apply even if the work wasn't digitized. So if someone found your sketchbook or the picture they could copy and use it for their own purposes and THAT part really bugs me. Online, its bound to happen if your not careful, but in the real world that shouldn't be the case. Its your work, you did the work, no one should use it for profit without your consent. Otherwise what's the point?

Even though I emphasized Photographers and artists, this would also apply to Sculptors as well.

[Armatus]

So basically this is really just an attempt to over turn copyright law which essentially states you hold the rights to anything you create. Of course if someone steals it you have to prove you created it, but I'm puzzled as to why anyone would want to facility copyright theft.

Why we even need to have such a new bill is beyond my comprehension. I mean I see nothing good coming from it in fact I see nothing but bad. I'm really starting to get angry.

[Roshak]

Again, I don't have a problem with the principle of the bill and that is what the sponsors I think are looking at solely (which is very unfortunate). The principle or rather the idea of providing artwork, sculpture available to public to use when the owner is unknown would greatly benefit schools, libraries, museums, and colleges.

Know all those text books you've been using at school/college? All those images, especially for history books, needed be ensured that no copyright was all ready attached to them which cost time and money to do. Quite a few of those images or sculptures are unknown and they can't use it without facing possible charges. So with the bill's "Idea" this would help them.

HOWEVER, The way the bill is stated and how its not offering any clear or specific information on searching, use of profit, and use of the work by the public (this isn't restricted to education) really disturbs me.

What your saying is exactly what a lot of artists and art-students (like myself) have a problem with. And with this bill trying to get past quickly and with little attention is even more disturbing.

So if you want do something about it, go to the links provided and do your part. Every letter and voice count. I've been writing to the local news stations trying to get them to do a story or an article on it.

UPDATE

Another article was published, this time by the Boston Herald
http://www.bostonherald.com/business...icleid=1095637

Keep it up, we want this thing to get as much attention as possible.

[Armatus]

Well anyone who's been involved in art or gone through art school is probably violating some form of copyright law just by trying to complete some of the basic assignments and for that small group yes it removes any potential problems that could arise from doing so. Yet it is already a don't ask don't tell kind of thing with the students. I really don't see that however as justification for a larger bill which makes it easier for anyone off the street to simply reproduce your work and call it their own or use it for purposes which you would have never intended or allowed to be displayed publicly especially without provision for some form of repercussion or compensation. Art students that utilize other works and this goes for pretty much all liberal art don't put this stuff on display for the public, they learn from other artists, musicians, writers, etc, they don't make a name for themselves from other peoples work.

Currently you hold an inerrant right to anything original you create unless you specifically relinquish those rights. This is the way it should be. If you come across an image or a piece of work you did not create you should assume that someone holds the copyright and that since you were never given the right to do anything with it you really can't expect much.

I think most of the time all that happens in smaller cases (excluding the music industry) is those using works get cease and desist notice and as long as the offender complies and hasn't claimed the work or attempted to make profit from it that's that. Yet I heard years back that an owner could request up to $600 in fines per image used in court. I think we need something fair, but not this bill. I would rather keep things the way they are.

[Roshak]

I think we need something fair, but not this bill.

I agree 100%. And until they realized that I going to continue to oppose it. Even if they did what was suggested in the NY Times article I would be happy with.

Update:

Added a good link for copyright basics.

Orphan Works Update: Bill Passes Judiciary Committee and Awaits Consideration on the Senate Floor
After delaying consideration of S. 2913, the Senate Judiciary Committee finally took up and passed a bill that would reform copyright law relating to "Orphan Works." The bill, which passed the Judiciary Committee by voice vote on May 15, relates to those works that may be protected by copyright, but whose owners cannot be identified or located. These works may include writings, images, musical tracks, or videos.



Senator Patrick Leahy, the lead sponsor, says the legislation will help potential users of orphan works find the owners and consequently, help the owners receive compensation. The bill sets the rules for how potential users must conduct a good faith search for owners before they use a work. Leahy says this is not "a license to infringe." If it is determined that a user has not conducted a regulated search, he or she could be held liable for statutory damages amounting to as much as $150,000.



"More creative works will be used, contributing to our cultural and artistic heritage, and more creators will receive compensation for use of their work," said Leahy in a press release.



During its work on the bill, the Committee added changes that strengthened requirements on what constitutes a qualifying owner search. Also, S. 2913 specifically says that if a copyright owner emerges after the work is used, the user must pay reasonable compensation and stop using the content.

Also added the updated Senate Bill.
http://www.illustratorspartnership.o...0of%202008.pdf

There's too many updates to list them all, so I recommend you all read it.

The good news is they did address diligent search and some of the other issues. However, I'm still not fully convinced by them.

[Roshak]

Update: The Bill is getting ready to be voted on by the Senate. And the sponsors and artists of the GAG (Graphics Arts Guild) and others are going to be to Washington D.C., to talk directly to Congress about the proposed legislation. While the bill has better recommendations, it still isn't up to par of being a fair law.

We are all working as fast as we can, and there aren’t enough hours in the day to get everything done and still communicate about it. During the members meeting last Wednesday Shana Winters (counsel for the Judiciary Committee of the House) said that they would be accepting additional mark-ups to the House bill- not as comments, but as revised (proposed) language.


David Brog, former Chief of Staff for Senator Arlen Specter says the ‘magic number’ of communications (phone calls, letters, e-mails, post-cards, etc.) is 1,000. He says if an office gets over a thousand pieces of correspondence on one particular issue they start to pay attention. So I guess our goal is to make sure that every Senator and Congressman/woman receives at least 1,000 pieces of mail. Apparently they do not all have to be from constituents, although it is better if they are.

So there you go, email, fax, write whatever you can to get that number to 1,000. Again your voice DOES make a difference. This is election year in the U.S., so chances are they don't want to ruin potential voting pools.

And for those international, sending your voice will help out too for that means that U.S. artists and citizens aren't the only ones who don't like the bill. If a thousand people outside the U.S. send their concerns from Britain, they know that Britain is concerned about this too, and if you get 1,000 from Germany, they'll know that the Germans aren't too keen on it and so forth.

I'll be away for a little bit, but will return with the Bill written in simple English for those not getting it. It will be as close as possible to the original bill, but without all the law innuendo that can get confusing.

[Armatus]

After checking it out some their is definitely repercussion for using copyrighted material (primarily if you copyright it), but what really bothers me is placing the burden on everyone to pay protection money for everything they create and be forced to continually pay to renew that copyright. That's what I think is unfair about it.

Also we already have a public domain and database so why act like this is going to create anything richer? By their logic if everyone signed on to copyright their work then there would be very little in the public domain or it wouldn't be any different than the database like wikicommons right now except to include an archive of those works which are not digital in digital format for the sake of allowing people to use stuff they find without a signature.

EDIT: does anyone know how many voices/signatures have been attained so far?