Why is this important to scholars? The following talking points are provided by the American Library Association:
- This legislation advances productive uses of culturally and historically significant works whose copyright holders cannot be identified or located, even after a reasonable search to locate rights holders is conducted.
- The collections in our libraries, museums, state and local historical societies, and archives include a significant number of orphan works. These repositories with orphan works are not made publicly available by libraries for fear that rights holders will come forward, initiate legal action, and demand unknown amounts of compensation.
- A dark archive requirement – mandating that users file a notice to the U.S. Copyright Office before using an orphan work – would be excessively burdensome for users, with little benefit to owners. Such a requirement will undoubtedly drive up compliance costs, and many institutions will require legal counsel to review the submissions prior to filing.
- Despite extensive and costly searches to locate orphan work rights holders, without a legislative solution, the risk remains high for institutions that make these works publicly available.
- Resolving the orphan works problem presents significant new educational opportunities because these works will be accessible and available to students, scholars, and the public.
4 comments:
Lori,
As a creative who depends on the protection of copyright for my livelihood, I am against the Orphan Works bills, both House and Senate. Libraries and researchers can be well served with just a few simple changes to the current copyright law, instead of the massively complicated version currently set forth, which only serves the interests of commercial exploiters looking to package and profit from "free" work they would like to think is orphaned.
All creatives welcome and support the use of their work by institutions like libraries. However, the bills under consideration now will significantly undermine the real protections of copyright, leaving doors open for unscrupulous commercial interests.You know it will happen if you have followed anything in the stock and royalty free art markets.
We propose that the libraries, non-profits and educational institutions sit down with artists' organizations to arrive at a solution that is win-win for both. The current process excluded the majority of creatives from the bargaining table.
Also, this bill has international implications because so much art is published in the US from outside sources. Where is the fair provision for them? Were they consulted?
Time is short. But we urge you NOT to support this bill. Let us together make one that respects both sides of the issue and keeps the commercial exploiters out of it.
Thank you.
Respectfully,
don
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don schaefer
www.pro-imaging.org
Thank you for your post. I welcome the discussion and respectfully disagree with the argument that these changes would undermine copyright protections. As you have indicated, commercial exploitation already occurs under the current copyright law. As outlined in Section 2 of the proposed legislation, remedies would be limited only if the infringer documented the search, followed the guidelines for using the work, and agreed to pay reasonable compensation when the copyright holder emerged. Unscrupulous commercial interests will not be shielded under these guidelines.
I do agree that additional work needs to be done to address the concerns of artists to ensure their copyrights. A registration system and searchable database with technological protection measures that meets the needs of artists and potential licensees is desperately needed. Organizations such as yours are important to encourage these efforts and inform discussions not only in the US but also in international forums like WIPO, where the issue of orphan works has been suggested as an agenda item for the Standing Committee on Copyright and Related Rights.
Thanks for your reply. I welcome the discussion as well. I'm sorry it didn't take place earlier in the legislative process. Wny did it take place behind closed doors?
Under the current proposed law, the rules of who pays for placement in the databases, and how much they would pay, and who administers them, is not in place. Artists must already pay $30 per piece for all published work. That, in itself, is a burden to a lot of artists. If they don't register in the "orphan works" database, they lose all right to collect attorney fees and damages, effectively stripping them of any hope of recovery. Also, it is up to the artist to regularly search the "intent to publish" lists, which could be massive, and locate any possible infringements.
Furthermore, the arbitration process for non-profit infringement is not settled, and is set only for a fair use payment for the particular published instance. Who would pay the artists' time and attorney fees? The current version would create a net loss for artists to pursue payment, thus discouraging any motivation to redress infringement by creators. The ball would be clearly in the infringer's court under the proposed legislation.
Yes, copyright infringement occurs today, as violations occur under any law, but the avenues for fair and just redress are significantly depleted under the proposed laws.
I don't see how this bill protects our cultural heritage while respecting the value of creators. Why not establish an institution similar to the Library of Congress where works whose creators aren't apparent could be gathered and used as a national resource? Use would be non-commercial, and if the institution were created in the spirit of encouraging contributions to a cultural asset, it would encourage everyone with an art and artifact to contribute. Think of the Wikipedia model.
don
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don schaefer
pro-imaging.org
A misconception that has been propagated is the idea that the legislation requires artists to register their work for copyright protection. Neither version of the amendment requires this. Copyright protections are not being lost; rather, assurances are provided to those institutions who want to use "orphaned" copyrighted works to preserve and teach this cultural heritage -- assurances that if, after documenting reasonable efforts to find a rightsholder, someone later claims infringement, reasonable remedies can be negotiated. A digital library would never risk archiving these works if, as under current copyright law, they are liable for $300,000 for each infringement.
Both bills before Congress mandate the creation of databases of copyrighted works to facilitate the search for rightsholders, but registration would not be mandatory. Under the current copyright law, copyright is automatic once a creative work is fixed in some tangible form, regardless of notice or registration. Unpublished works have never needed a copyright notice to receive protection, and works published after March 1, 1989 do not require notice. That fundamental tenet of the law is not being altered.
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