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The Orphaned Works Question
Monday, April 14th, 2008 at 10:20 am by JamiOver the weekend, many well meaning readers sent me Mark Simon’s article warning artists everywhere that if a new piece of orphaned works legislation is passed, we will lose the rights to our own work. He calls on all of us to write our Congressmen to stop this bill. So, being a responsible citizen for once, I decided to look for said bill. If I’m going to write my Congressman about a bill, I damn sure better have the bill number so he knows what I’m talking about. No legislation regarding orphan works has been introduced into the 2008 congressional session.
Huh?
So I decided to do some more digging to see if Simon’s claims hold merit.
Before we go any further, let’s define some terms so we know what we’re talking about here.
Works become orphaned when the original creator or copyright owner cannot be located. Orphan works can be used by anyone.
Currently, copyright protection is automatic for any work authored in fixed tangible medium (paper, tape, computer, etc.). Basically as soon as I draw something on a piece of paper or computer, that work is protected. Registration with the copyright office is optional.
Mark Simon alleges that new legislation will now make registration mandatory. But in a statement before the Judiciary Subcommittee on Courts, the Internet, and Intellectual Property, Register of Copyrights Marybeth Peters stated that:
In our study of the orphan works problem, the Office reviewed various suggestions from the copyright community. These included creating a new exception in Title 17, creating a government-managed compulsory license, and instituting a ceiling on available damages. We rejected all of these proposals in part for the same reasons: we did not wish to unduly prejudice the legitimate rights of a copyright owner by depriving him of the ability to assert infringement or hinder his ability to collect an award that reflects the true value of his work. We also rejected proposals that would have limited the benefit of orphan works legislation to certain categories of works or uses. Both commercial and noncommercial users made compelling cases; moreover, these parties often collaborate on projects and both need the benefit of the law. Likewise, we concluded that there were significant problems with respect to all categories of works: published, unpublished, foreign and U.S. works.
The Subcommittee did propose legislation in 2006 that would force users to document their searches for original copyright owners to prove a work’s orphan status:
On March 8, 2006, this Subcommittee held an oversight hearing on our Report, followed by a similar hearing in the Senate on April 6, 2006. On May 22, 2006, “The Orphan Works Act of 2006” was introduced in the House by former Chairman Lamar Smith. The bill included revisions to the Copyright Office’s original proposal and incorporated a number of changes that were designed to protect photographers and other visual artists in particular. These changes included a requirement that users document their searches, a definition of “reasonable compensation” (taken from the Office’s Report), and the availability of attorney’s fees under circumstances where a user fails to negotiate in good faith with an owner who has previously registered his work. That bill was later imbedded in H.R. 6052, “The Copyright Modernization Act of 2006.” The 109th Congress ended before the bill could be addressed.
The 2006 bill never made it out of committee. And no bill regarding orphaned works has since been introduced.
So now I’m confused. Not only does the Subcommittee not support mandatory registration, they also want to formalize the process by which people determine the orphan status of a work. Copyright is still automatic. And there’s no bill on the floor, in committee, or even in subcommittee. What the hell is Simon talking about?
There are others out on the interwebs who question Mark Simon’s incendiary article. Meredith Patterson outlines six misconceptions about orphan works. Kynn Bartlett investigates Mark Simon’s background and tries to figure out what Simon is talking about. And here’s Marybeth Peters’s full written statement in front of the Subcommittee as well as a link to the U.S. Copyright Office’s previous finding on Orphan Works. And thank you to the readers who brought all this mess to my attention.
Have no fear internets. As far as I can tell, our copyrights are safe!
For now…
