As, you know, my boss Chuck sent around a copy of an article today urging advocacy against a bill on "Orphan Works."
Well, like nearly everything else in the world, this issue appears to get more complex the closer you get to it. Which in my case is not very. But still I learned some things:
There are some legitimately good reasons for the Congress to act on this issue and indications are that they will act this year. The Copyright Office explains why works with unknown copyright holders matter:
"Concerns have been raised that the uncertainty surrounding ownership of such works might needlessly discourage subsequent creators and users from incorporating such works in new creative efforts, or from making such works available to the public."
I checked the Congressional Record online, and the bill is still in committee and a hearing was held last month. So there is no bill yet.
The question is, will the bill be written in such a way that big corporations can easily get away with using your work without paying you if they make some perfunctory pseudo-attempt at finding you?
It's already the case that it usually costs more to fight a copyright battle than you're likely to receive in settlement. That's presumably true whether you're suing Time-Warner or a t-shirt vendor. It's a sad, angering feature of our legal system, not this bill. Will the bill now being written make this situation worse or create new problems? We can't know now.
Nothing I've read leads me to believe that the Copyright Office is going to absent itself from the registration business (what government bureaucracy happily gives up its reason for being, come to think of it?), counter to the suggestions in the Mark Simon column.
The Graphic Artists Guild was concerned that a failed earlier incarnation of the bill 1n 2006 didn't require the Copyright Office to oversee the question of what constituted "due diligence" in terms of trying to find the copyright owner, implying that this would allow Disney, say, to set their own standards as to how much diligence was enough. This is mistaken reaction to a non-issue, I think. Due diligence is a matter that would be settled in court cases, following legal precedent, not in some new Wild-West, Darwin-on-steroids nightmare future legalscape.
Here's the latest from the "Advocacy" page of the Graphic Artists Guild website--no shrinking violets when it comes to standing up for artists. Note that it says a bill was anticipated last year:
Orphan Works - Current Status
We expect Senate Judiciary Committee Chairman, Senator Patrick Leahy to reintroduce a new version of the Orphan Works Bill in 2007. We continue to work closely with both House and Senate Judiciary Committees on this legislation. Please do not write letters until a draft bill is introduced, and we know what the specific terms are. We will keep you informed as soon as we have news.JH
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