You may recall that earlier this month a certain Mark Simon declared that if something isn’t done soon, the federal government will declare all your arts are belong to them. He claimed that new legislation would automatically give orphan status to all unregistered works. Essentially, you would not own art or music or writing or anything that you create unless you paid mad cash to officially register it. Sounded like doom and gloom to me. I was ready to release the hounds and call for an all out assault on our representatives. However, at the time of Simon’s article, no legislation had been introduced.

It turns out that Mark Simon is partially right. The U.S. Copyright Office is indeed concerned about Orphan Works. Two bills were introduced in the House (H.R. 5889: To provide a limitation on judicial remedies in copyright infringement cases involving orphan works) and Senate (S. 2913: A bill to provide a limitation on judicial remedies in copyright infringement cases involving orphan works) on April 24, 2008 to address the Orphan Works question.

The text of the Senate version isn’t on GovTrack yet, but the House version is up. I’m going to attempt some short hand here so you don’t have to subject yourself to cryptic legalese.

Subsection (b) paragraph (1) subparagraph (A) sets limitations on remedies that an artist can claim if their work is infringed if the following criteria are met by the infringer (the dirty rat stealing you work):

• The infringer or someone acting on their behalf has conducted a reasonable documented search for the copyright owner and was unable to locate said owner;
• filed a Notice of Use with the Register of Copyrights before using the work;
• attributed the owner of the infringed work if the owner is known based on information obtained during the qualifying search;
• included a mark or symbol along with the use of the infringing work;

There’s some extra strength legal mumbo jumbo about the infringer consenting to the jurisdiction of the U.S. district court and something else that I don’t quite understand, but it has something to do with submitting the proper documentation.

If the conditions in Subsection (b) paragraph (1) subparagraph (A) are met, the courts may decide to asses monetary relief or injunctive relief to the original owner based on Subsection (c). Monetary relief forces the infringer to pay reasonable compensation to the original owner. Injunctive relief prevents or retrains the infringer from using the work. There are more details in that Subsection, but either way, the infringer must pay.

Okay, back to the conditions of eligibility. Subsection (b) paragraph (1) subparagraph (A) does not apply if the infringer fails to negotiate reasonable compensation with the original owner or if the infringer fails to pay reasonable compensation in a timely fashion.

Subsection (b) paragraph (2) outlines what a Reasonable Search would entail.

Wow, even the Cliff’s Notes are a bit difficult. Let’s see if we can break this down further.

If some rat bastard finds a work and wishes to use it, said rat bastard must first conduct a documented search for the original copyright owner. If said owner cannot be found, the rat bastard may use the work according after filing a Notice of Use with the Register of Copyrights. If the owner is found and the rat bastard is still intent on using the work, the rat bastard must attribute the work to the original owner and pay reasonable compensation for use.

Now, I’m no lawyer, so I could be missing something. But I don’t see anything in there that says anything about original works being orphans unless formally registered. Seems to me this puts the burden of proof of orphan status no on the artists claiming copyright bu on the rat bastards who want to use the work. That doesn’t mean the bill won’t change by the time it goes up for vote if it ever gets out of committee.

If I have this right, this bill would give us artists more leverage to prevent unauthorized use of our work. If the rat bastards use our work without bothering to figure out who created it in the first place, we now have a formalized process we can invoke to shut them down and get paid. Sounds like a good deal to me.

[Via GovTrack]

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This entry was posted on Monday, April 28th, 2008 at 2:46 pm and is filed under News, The Future, Art. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.