Wow. I've been reminded just how "hot" the orphan works issue is by an influx of e-mails and phone calls following my blog yesterday on the issue. In that entry I posted some arguments against the current legislation made by illustrators; I didn't take a position on the merits of the arguments, instead merely stating the importance of moving legislation that is fair to both original and new creators. I have made no secret of my desire to see legislation pass (here and here, for example), if only to remove a complaint that can be levied against our copyright system by those opposed to it.

I will respect the privacy of the conversations I have had on this subject in the last 24 hours but attempt to summarize some of the arguments below; they seem collectively to suggest that while the plight of illustrators is real, there are some potential remedies and there isn't necessarily cause for abandoning the legislation.

To begin with, we must recognize that in the digital age, photographers and illustrators are especially vulnerable to having their work used without their permission. They have been suffering this intellectual theft for years now. To date we have not seen much in the way of unionizing or collective effort to fight this, but that makes sense because there are innumerable photographers and illustrators out there, in general working for themselves, and a photographer eager to see her work purchased isn't likely to say no to a contract in order to assist a union of her colleagues. There have been efforts at building registries, however, and there are steps under current copyright law a photographer can take to protect digital works.

We heard about the plight of photographers and illustrators at our Congressional Seminar on orphan works. We also heard about countless photographs that go unused because their owners can't be located. So we have to remember what we're trying to do here with orphan works legislation; we're trying to gain access to content that currently goes unused, while ensuring that if the owner surfaces they will be fairly compensated and have the possibility of stopping use if it is appropriate to do so.

Will recent photographs and illustrations be declared "orphan works" and used with impunity? Not necessarily. Right now it's pretty easy to use somebody's work without permission and hope they don't find out. If they do, what are they going to do? Sue? Under orphan works, if they're caught, the burden of proof is on them to show they performed a diligent search. Even if they prove that, they still have to pay for the use. No, statutory damages are largely off the table, but as I pointed out, under the revised legislation if the user of the work refuses to cooperate, then damages and legal fees are on the table.

The illustrators claim the bill as written allows the new user to copyright all of the new work, not just their contribution. I'm told by copyright lawyers that's not the case. The illustrators also say that the incentive to register works is a violation of the Berne Convention. I'm on record as being a big defender of Berne and wouldn't want to compromise our position with the 160 other Berne members. But again, it was pointed out to me that we currently have a system where one must register in order to pursue full legal avenues for copyright infringement; that's been on the books for the two decades we've been in Berne and no one has challenged that as a "formality," because you still have copyright protection without registering.

I don't know how photographers and illustrators can be persuaded to support the legislation. They generate original works by and large, and thus don't need access to "orphan" works. They are already under seige as far as copyright protection goes, and they honestly feel this will make it worse. But there are three potential benefits of the legislation:

1. It will encourage people to do searches. As stated above, there's little fear now about using a work, because even if the owner surfaces, it is costly for them to sue. Orphan works legislation puts the burden of proof on the user and creates a method for fair compensation.

2. It calls for the US Copyright Office to study the creation of a small-claims procedure. That study would be done in one year; the effective date for the bill is in two years. So if a reasonable small-claims model could be proposed by the Copyright Office it could be put in place before the orphan works bill takes effect. It's hard to imagine a group benefiting more from a small-claims procedure than visual artists.

3. A solution, however partial, to the orphan works problem shows that our copyright system can continue to work in a digital age. It removes one arrow from the quiver of copyright foes, and it makes it harder to ignore copyright law by claiming it isn't practical any more. This is critical for illustrators and photographers; any step that strengthens the credibility of copyright law strengthens their own abilities to protect their copyrighted works.

The Illustrators' Partnership of America, in its most recent missive, seemed to be writing off any chance of influencing the House Judiciary Committee and instead is focusing on individual House members (in advance of a floor vote) and on the Senate Judiciary Committee; Senator Hatch has made it clear he's eager to move on orphan works once it clears the House, and I saw staffers of Hatch at the recent House IP Subcommittee markup.

The Illustrators' message to House members is supposed to be this: "Please remember to emphasize that this bill far exceeds the mandate of an orphan works bill and that it will interfere with our rights as small businesspersons to engage in free market business transactions." They've argued that the bill extends copyright by the new artist over the old artist's work, but that apparently is in dispute. If that is incorrect, it's not clear how this interferes with business transactions. Yes, it limits what the artist can collect if her work was viewed as an orphan, but one would hope the artist would make it easy to be found so the work can't be an orphan and a market transaction could be negotiated. In fact, one of the best moves an illustrator or photographer could make is to ensure she is easily found, and then run (and document) searches to prove that it takes very little effort to track down ownership. Thus, someone wishing to play by the rules would find her right away, and somebody using it without permission and claiming to have run a "diligent search" could be proven otherwise and thus couldn't claim the protection of the legislation.

I strongly encourage photographers and illustrators to remain in the discussion as the bill moves forward, but also to put forward proposals that they feel protect their interests while still allowing legislation to become law.

posted by Patrick Ross @ 11:43 AM | Access: Commons, Fair Use, Orphan Works, Public Domain

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