I find myself in a continuing dialogue between parties for and against orphan works legislation, and my own conflict between wanting to see legislation pass yet also ensuring small artists aren't disadvantaged has me feeling pretty torn.

Last week I wrote about the plight of illustrators in the debate, then posted a repsonse to their arguments culled by significant feedback I received from my post. The illustrators Partnership of America informed me that they have crafted a FAQ based on that post, and I'll quote from it below.

First, let me inform our readers that PFF has published this morning the transcript of our March 31, 2006 Congressional Seminar on orphan works. That event, ably moderated by Solveig Singleton, featured among others a librarian, an attorney representing photographers (and sharing similar concerns to illustrators) and Jule Sigall, primary author of the Copyright Office report on which the House legislation is based. I also call attention to a thoughtful writer I've just discovered on this subject, Wendy Harman.

Some of the illustrators' basic objections can be summed up as follows; I will post my responses in italics: 1) It will be easy for recent works lacking clear identification to become "orphans." I agree. 2) Requiring registration violates the Berne Convention. Even incentivizing registration does so. The fact that US law incentivizes registration in order to be able to pursue full legal avenues for infringement, despite Berne, is moot because there remains copyright protection. Under the proposed law a work can be declared an orphan even if it is registered; Orphan Works Act violates Berne by legalizing infringement. Foreign artists protected under Berne would also risk having their works orphaned in the US. I am a true believer in Berne. That said, I don't think this legislation requires registries; I could see an artist's work being protected even if it wasn't in a registry. I oppose mandatory registration, but I don't see why a copyright owner shouldn't be willing to take some steps to protect their own property. The illustrators in their FAQ compared theft of their works to stealing a car; most people lock their cars, don't leave the keys in them, and if they are fortunate enough to own a garage keep the car secured in there.

3) The fact that works are going unused doesn't justify theft. Again, I agree, but there is societal and utilitarian merit in these works not being abandoned. 4) Compensation after the fact isn't truly fair if the creator has lost leverage in negotiating a licensing fee. Agreed, but the monetary value of a solitary illustration is likely low, so a "fair" fee isn't likely to differ much from what the illustrator could have secured in a pure market transaction. 5) The ability to stop use after the fact is not what was intended under copyright law. I'm sympathetic to this argument, but the only response is to not have any orphan works legislation at all. 6) Because the proposed law permits makers of derivative works to copyright those works, the copyright holders of the original works risk losing copyright on their original works. I'm not a lawyer, but a number of lawyers I respect have assured me that this is an exaggeration. However, the Copyright Office can be asked to study this after the law takes effect, and it can be addressed as the law approaches its sunset. If the law does lead to artists losing their copyright then it would be entirely appropriate for Congress to do a correcting amendment.

7) It is only "legal theory" that the burden of proof would fall on the user to show that a diligent search had been performed, because "no statute can conceivably define the merits of all the myriad arguments that infringers could use to claim they’ve made 'a reasonably diligent search.'” Everything in this debate is theory; we have to see how it will shake out. That's why I support an ongoing examination by the Copyright Office and a sunset. Whatever becomes law won't be the end of the debate. 8) Artists can't unionize to protect themselves because under the National Labor Relations Act independent contractors can't unionize. I wouldn't suggest anyone form a union in the 21st century anyway, so that's fine with me! 9) Technology burdens would prevent the development of effective registries. True. The nature of illustrations, and photographs, are that registries are more challenging. But this is already a problem for illustrators in the present market; the passage of orphan works legislation doesn't suddenly make a registry more challenging. I believe there is merit in illustrators pursuing their own registries because they should want to do everything possible to protect the value of their property, just as I'm sure they protect their cars.

In my post I asked the illustrators to put forward not just objections to the bill, but concrete proposals that they would support. They responded:

Q: Then what would it take to persuade photographers and illustrators to support orphan works legislation?

A: Here’s what we said in oral testimony before the Senate, April 8, 2006: “We believe the orphan works problem can be and should be solved with carefully crafted, specific limited exemptions. An exemption could be tailored to solve family photo restoration and reproduction issues without otherwise gutting artists’ and photographers' copyrights. Usage for genealogy research is probably already covered by fair use, but could rate an exemption if necessary. Limited exemptions could be designed for documentary filmmakers. Libraries and archives already have generous exemptions for their missions. And if their missions are changing, they should abide by commercial usage of copyrights, instead of forcing authors to subsidize their for-profit ventures.”

It sounds to me like this would essentially be saying the Orphan Works Act shouldn't apply to illustrations and photographs, except in very narrow exceptions. I think copyright holders of books, movies, songs, quilting patterns, etc., might take issue with the notion of singling out one form of creativity for special treatment. They might particularly take issue because the problems facing illiustrators and photographers are ones that predate the debut of orphan works legislation. It's also not clear to me that a group mentioned by Prue Adler at our Congressional Seminar, namely university libraries holding vast stocks of unidentified photographs, would be able to make digital copies of those photographs for preservation purposes if they couldn't find an owner. That, to me, is an unreasonably broad exception.

The illustrators also addressed my central point throughout these posts, namely that we need to pass a functional orphan works bill to show our copyright system functions in a digital age and to remove a piece of ammunition from the Copy Left (a group the illustrators seem to dislike far more than me). In this response they lifted my exact wording in forming the FAQ question:

Q: But wouldn’t the Orphan Works Act strengthen the credibility of copyright law by showing that our copyright system can continue to work in a digital age? It would remove one arrow from the quiver of copyright foes, and make it harder to ignore copyright law by claiming it isn't practical any more.

A: Just the opposite. This bill would be retroactive, betraying all those artists who for 30 years didn’t do what the law didn’t require. Those artists could now see their copyrights cast to the winds. You don’t engender respect for the law by betraying those who have observed it.

This is where I have a bit more optimism than the illustrators, although it's easy for me to be more optimistic because it's not my work that's at risk here. Right now many "orphans" aren't used because attorneys won't authorize the risk. After this bill becomes law, those same attorneys will be nervous, but now they'll be nervous about making sure that a diligent search is performed. As Jonathan Band said at our Congressional Seminar, even after this is passed, it still might be cheaper and easier to simply purchase a known photo or illustration from a stock house, or even commission an original work. I don't think textbooks are suddenly going to roll out of J. Wiley and Sons containing recent illustrations that were used without authorization of the illustrator. I think this law will be used mostly by documentarians and librarians, and it will be used mostly for older works. A younger work has far less historical value, and is far more easily replaced by licensed works.

I could be wrong. I could be very wrong. But that is why I like the idea of Congress revisiting this down the road, and the Copyright Office monitoring it. I also believe that if, five years from now, you tallied up the copyright violations illustrators have suffered, they would be considerable; yet, I think most of those harms would have been performed without any attempt to use the Orphan Works Act as a shield, or if the shield was cited it would have been done so retroactively and it would have been thrown out by a judge.

The illustrators should keep up their fight; they have a cause worth fighting for. But they should also ask themselves, "What am I willing to ask Congress for if it looks like this bill is going to head to the President's desk?"

I've tried to get Movable Type to allow comments for this post; I was unsuccessful in doing so. Please send any comments or criticisms to the link below and I'll do my best to respond.

posted by Patrick Ross @ 11:20 AM | Access: Commons, Fair Use, Orphan Works, Public Domain

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