Orphan Works Bill

We've been following the issue of the proposed US Orphan Works Bill  through a number of topical websites and trying to understand how it will affect visual artists including comics artists working both digitally and in print. Neither of us are lawyers and neither of us are political animals and we have a difficult time wrapping our minds around some of these policies, but here is a summary of what we have gleaned from our readings:

1. What are orphan works? Orphan works are defined on Wikipedia as a copyrighted work where it is difficult or impossible to contact the copyright holder.
2. What is the Orphan Works Bill? This is proposed US legislation that will essentially allow individuals or organisations to arbitrarily use a work deemed to be an orphan work. The so-called copyright infringer will need to demonstrate that they have undertaken the minimum requirements for tracing the copyright holder and, if unsuccessful, will still be able to utilise the work without restriction. In turn they will supposedly pay 'reasonable compensation' commensurate with the use of the work somewhere down the track if and when the copyright holder discovers the breach. (We are unsure of whether that compensation is lodged with an agency that 'holds' it on behalf of the copyright holder, or indeed the compensation is only paid when the copyright holder challenges the infringer.)
3. What are the implications for artists? The legislation recommends that a Database of Pictorial, Graphic and Sculptural Works be set up (these registries will need to follow guidelines set up by the government but may in fact be private commercial ventures.) The original creator of these visual works will need to register the copyright of all their art pieces in these databases. The copyright owners will thus need to pay a fee for the privilege of protecting their own work, which may end up being an expensive proposition. Those creators whose works have been used without permission can sue the infringer but, as mentioned above, may not receive substantive compensation.

Furthermore, the "Orphan Works: Legislation by Misdirection" article tells us that:

The key to the Congressional magic act has been to hide an anti-copyright rabbit in an Orphan Works hat while misdirecting attention to a tedious debate about "reasonably diligent searches," injunctive relief and statutory damages. 

Meanwhile the secret of the trick has been simple: redefine an orphaned work as "a work by an unlocatable author." 

The new definition would permit any person to infringe any work by any artist at any time for any reason – no matter how commercial – so long as the infringer found the author sufficiently hard to find.

Since everybody can be hard for somebody to find, this voids a rights holder's exclusive right to his own property. It defines the public's right to use private property as a default position, available to anyone whenever the property owner fails to make himself sufficiently available.

This is a new definition of copyright law.

Although the OWB is a US based initiative, many other countries including Australia will feel the impact of the legislation if it is passed through Senate. Colleen Doran talks about it on her blog:

And what are foreign creators supposed to do about all this? How do they handle this law which does not square with the copyright law in their own countries? Will they be forced to use our online registries to protect their works since whatever they do can be posted on the internet in minutes and, potentially, orphaned? Well, yeah. How's that fair to an artist in Sri Lanka? Or South Africa? How's that fair to older and indigent artists who have no computer access or simply can't afford to enter these databases?

Moreover, the MisDirection article cited above also tells us that:

On March 13, the Register of Copyrights testified before the House IP Subcommitte. On page 1 of her testimony she said:

"Every country has orphan works and I believe that, sooner or later, every country will be motivated to consider a solution. The solution proposed by the Copyright Office is a workable one and will be of interest to other countries."

You can be it will be of interest to other countries, because the copyrights of other countries can now be orphans in the U.S. too. The Copyright Office and the Senate have thrown down a gauntlet to the world.

Australia has a number of licensing agencies including Public Lending Right (PLR), Educational Lending Right (ELR), Copyright Agency Limited (CAL), as well as Visual Arts Copyright Collecting Agency (VISCOPY) – the latter of which deals with artistic works. It will be interesting to see what VISCOPY's POV is on this matter and we will be watching its website closely. However, we will try to keep you informed with other relevant articles and information so we can learn together. Here are some important ones to watch (thanks to Colleen Doran and Matt Elder for the leads).

"Orphan Works' Copyright Law Dies Quiet Death' (30/09/08)– Wired

"Orphan Works and Comic Book Death" – Newsarama 

"Orphan Works Emergency" (28/10/08) – Colleen Doran: A Distant Soil (hell, check out this entire 'must read' blog for comics creators).

The entire Illustrators Partnership Orphan Works Blog.

 And here is an excellent audio summary on YouTube: