Orphan Works Bills introduced in USA
Posted on: Fri, 04/25/2008 - 16:31
Orphan Works Bills introduced in USA
Source : Stock Artists Alliance
Yesterday, both the House and Senate introduced their versions of the Orphan Works Act of 2008.
Senate Version [PDF]
http://209.197.116.91/SAA_PDFnew/Orphan_Works_Senate_04-24-08.pdfHouse version [PDF]
http://209.197.116.91/SAA_PDFnew/Orphan_Works_House_04-24-08.pdf
This is a recurrent thought which I've seen discussed several times on various lists, and also I've seen Adobe respond that it is simply not technically possible to lock metadata within JPEG's. The file specification just doesn't allow it.
Canon do sell encryption kit as an addon for the 1D series which can validate ownership of files eg the OSK-E3 But that addresses a different problem : who really created a photo and whether it has been tampered with. It can also encrypt files against viewing without authority. But if you want people to be able to view on the web, unencrypted JPEG is necessary and your metadata is exposed. It's a criminal offence to wilfully alter rights management (ie copyright) data in USA and UK, but proving the 'wilful' bit is very difficult since so much software simply discards metadata because it doesn't support it.
©A admin
Couldn't manufacturers such as Canon, Nikon, Adobe et al try just a 'little harder' to prevent these alleged orphans getting lost in the first place. Many photographers diligently embed Copyright info which is then diligently removed and passed off as an Orphan. Daft isn't it!
Contact your Senator in opposition to S.2913 NOW
Contact your Congressman in opposition to H.R. 5889 NOW
©A admin
Photo Business News today reports that the American Library Association is supporting the Senate version of the Bill, the one that has no requirement for the Notification of Use Archive (NUA). Says ALA:
The 'dark' description refers to the archive only being open to inspection for evidential reasons once a disputed case has commenced in the courts.
©A admin
Email update received from Mark Simon of Illustrators Partnership USA
You may have heard that the Orphan Works Act of 2008 was released to Congress last week. I have written a new article about it to help spread the word. I have included the text of that article here, as well as other information below.
You may reprint this article, intact, to help spread the word.
Thank you for your help in defeating this bill.
Mark Simon
Artist Advocate
Don't Lose The Rights to Your Artistic Creations
By Mark Simon
Artist Advocate
Press Release.
Others have said it couldn't happen. They said Congress and the Senate would never enact a bill that would endanger the rights to our creative works. THEY WERE WRONG!
If you don't register every photo and work of art in government certified private databases, you are about to give the legal right for anyone to infringe on your copyright.
The Orphan Works Act of 2008, also known as the "Shawn Bently Orphan Works Act of 2008", was released to the Senate and the House of Representatives recently. While at first glance the law seems to be a 'last resort' for a search for the owner of any photograph, artwork or sculpture, the devil, as they say, is in the details.
An "orphan", as it relates to this legislation, is an original creative work such as a photograph, graphic image, or sculpture, which is still protected by its term of copyright, but the copyright holder can't be found. Actually, this bill makes it easy for searchers to pretend it's hard not to find copyright holders!
REGISTRIES WILL REMOVE YOUR COPYRIGHT PROTECTION!
We cannot just sit back and let this Orphan Works bill pass! As it is written, if it passes we would have to register all of our creative works in all the upcoming private sector registries (those certified by the Copyright office) or risk orphaning all of our work. This means all past, current and future work could be legally used without your permission.
The problem lies in relying on the use of online electronic databases, or registries, to search for the owners of copyrighted works. The registries will employ new softwares to match an image to be searched with the images that are registered and if found will supply the searcher with the artist's name and contact information.
Having online registries to search for copyright owners is great. Using these registries as a basis for legally orphaning a work is TERRIBLE.
What makes me think the registries will be used to orphan works of art? Three reasons.
One. Page 2 of the Senate Orphan Bill states "sources of copyright ownership information reasonably available to users, including private databases."
Two. The effective date of this Bill will take effect either (a )on the date at least two private registries are available online or (b) by January 1, 2011, whichever is first. They are tying the bill to when these registries are available online.
Three. People who want to use your work for free now only have to perform a search for you using these registries, which will be ineffective at best, to qualify your work of art as orphaned, giving them FREE use of your art or photo. The private registries will likely be easy and quick, just not very complete.
All someone has to do is search a couple of these registries and if your work doesn't show as a match (and remember these software aren't perfect, so you may have registered your work and still not have it show up in the results) it may be considered orphaned and they can use it for free.
REGISTRY ENTRIES WILL BE LIMITED AT BEST
The problem is that very few of the billions of copyrighted images will ever be registered on any of these registries, much less all of them. No artist I know has the time to pull out every work of art, sketch and photo they have ever produced and register them with every upcoming electronic database. At to that any studio/artist expenses involved, assistants and assumed registration fees, and it's even less likely much work will make its way into the registries.
EVEN FAMOUS ARTWORK CAN BE STOLEN!
Even famous works of art could be orphaned, making it legal to infringe on copyrighted works. Art is already illegally used all the time, but this new orphan bill will empower and legalize even more infringed use of copyrighted works.
Religious painter Gary Lessord created a painting in 1979 called "The Crucifixion". According to Lessord, this same piece was used, without permission, by Mel Gibson as the major source of the graphic imagery in his "Passion of the Christ".
Lessord's painting was shown internationally in a show sponsored by the Catholic Church. It was exhibited in museums around the country and was featured on the cover of the book "The Many Faces of Christ", featuring an introduction by Pope John Paul II. In other words, this is a work of art that is known by hundreds of thousands of people and being the ONLY work of art showing Christ wounded in such a way, it should be easy to track down Lessord as the copyright owner.
Under the current copyright laws, if found guilty Gibson and his production company are liable for the infringement.
If the new Orphan Bill passes, all they would have had to do is search two of the registries and if the image doesn't show up, consider it an orphan and use the work. It won't matter how popular the piece is if Lessord doesn't register it in the same digital databases used in their search.
The new Orphan Works Act will orphan even internationally known works of art such as Lessord's.
Artist Mark McCandlish understands the importance of stopping this legislation. He has had to go after a number of entertainment production companies, such as Lions Gate Productions and the company behind the show JAG, for using his work without his permission. He has made a fortune in out-of-court settlements from infringements on his copyrighted work.
"This has GOT TO STOP," says McCandlish. "It will only get worse--much worse if the Orphan Works legislation passes."
In the new legislation, McCandlish would not have the same ability to sue for statutory damages. The new law will "limit remedies", thereby removing the expensive penalty for stealing your work. Sure, you will still be able to sue, but you will be limited to the amount you should have been paid in the first place.
This means the most an infringer would have to pay IS WHAT THEY SHOULD HAVE PAID IN THE FIRST PLACE! Any betting man wanting to use your art would take these odds and steal your work.
If you don't think this applies to you, think again. Have you ever taken a photo that is on the internet? Maybe you have photos on a photo sharing service like Flickr, Shutterfly or Snapfish.
Just imagine one of your photos was used by someone else on their site. That happens all the time, but if there is no commercial benefit to them, it's no big deal. Right? Wrong!
If a designer finds your photo on someone else's site (making it harder to find you, the true owner) and you haven't registered it in the online databases, an unsuccessful search on a certified registry will orphan your photo, allowing its use without your permission. You could end up seeing your photo in a national ad campaign, possibly for a product you don't want to be associated with.
THEY CAN CHANGE YOUR WORK AND COPYRIGHT IT FOR THEMSELVES!
The current copyright law states that only the original artist can create and copyright derivative works (creative work based on an existing image) of their own creation. The new Orphan Works Act will allow anyone to make changes to your work and copyright it under their own name!
Do you want to see what lewd things people can do to your work LEGALLY? You would have no recourse but to watch your creations be altered, sold and potentially ruin the reputation of your work.
Proponents of this Bill say they are protecting the rights of the people (or academia, who are a large force behind this bill) to make use of existing creative works if they can't find the owner. WHAT RIGHTS? Just because you can't find me, doesn't give you the right to use my work!
If you were walking down the street and found a car without license plates, would you feel it was your right to steal it, just because it was hard to find the owner? Maybe someone else took off the license plates. That happens to our creative work all the time. People eliminate or crop out our copyright notices. In fact, many of our clients insist we don't include that information in the first place.
Sure, we can also put digital watermarks on scanned images, but not every piece of art or photograph is only in digital form. Plus, there is an easy work-around to remove digital watermarks as well. (If you don't know it, I'M not going to tell you!)
You must make yourself heard NOW. This bill must not be allowed to pass!
Any single clause or amendment to a bill can cause an otherwise well-intended law to become devastating to a segment or segments of the population. According to Dan Nichols, who has worked on a number of political campaigns, it can take an average of 7 bills to reverse the total impact of a single bill one it is passed. This means 7 times the effort and money to reverse a bad law - even though it is recognized as a bad law - because there will be many different groups wanting to hold on to the parts of the law that benefit them. It is nearly impossible to completely reverse the effects of a law once it passes. This should make apathy the enemy of anyone who has something to lose by any aspect of a pending bill.
DON'T BE BULLIED INTO GOING ALONG WITH A BAD LAW!
CONTACT YOUR LEGISLATOR:
Go to http://www.usa.gov/Contact/Elected.shtml to quickly find the phone number, address, e-mail of every U.S. Senator , U.S. Representative, Governor and State Legislator. Please be polite. Threats only work against us artists. We need to make a professional impression to be taken seriously.
Make yourself be heard. Protect your creations. Every voice counts and so does your right to control your own creations. YOU NEED TO WRITE LETTERS NOW!
We only have a few days to make ourselves heard, as the Senate and House will only allow a short time for comments. Call them, send e-mails and fax letters.
If you don't prove you care about your work, the Congressmen and Senators who WORK FOR US won't care either. Show them you care!
GET ON AN ORPHAN WORKS E-MAIL LIST:
To be notified of the latest information on the Orphan Works bill and how to easily contact your legislators, send an e-mail to illustratorspartnership@cnymail.com and ask to be added to the Orphan Works list.
The complete House and Senate PDF versions of this Bill are available at www.SellYourTvConceptNow.com/orphan.html.
AUDIO INTERVIEW LINK:
Brad Holland of the Illustrator's Partnership was interviewed, prior to the release of the 2008 Orphan Works Act, regarding the bill and what it means to us as artists. Go online to http://www.SellYourTvConceptNow.com/orphan.html to listen and learn more about how you may lose ownership of all your art and photos. This article and the recorded interview are available for anyone to use in any print or on any website. Please forward this information to every person and group you know so we can work together and protect our creations and livelihoods.
Mark Simon is an award-winning animation producer/director and speaker. He speaks around the world on subjects about art, animation and tv production. His copyrighted companies may be found online at www.SellYourTvConceptNow.com and www.Storyboards-East.com. He may be reached at marksimonbooks@yahoo.com.
This article is free to be copied and re-distributed and posted, in its entirety.
Panelists at this forum will include:
- Others to be announced
To learn more about the Orphan Works Bill, listen to the interview with Brad Holland:
©A admin
Photo Business News today carries an analysis 'Orphan Works 2008 - A Wolf in Sheep's clothing' which digs deeper than EPUK's 'Why the Orphan Works Act is Uncle Sam's thieves charter'.
PBN author John Harrington has greater acquaintance with US law and the players involved. If you were so far unpersuaded about the global toxicity of this legislation, here are some extracts - but I strongly suggest you read the whole piece.
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more at http://photobusinessforum.blogspot.com/2008/05/orphan-works-2008-wolf-in-sheeps.html
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I am not aware of any coherent, organised response in UK. Like you, I think it unlikely anything will get done or organised in the brief time available. Pressure could come from UK government but on the strength of Gowers, they'll probably just use the US Bill as a template instead. Orphan works and registries figured large in the Gowers report so something is in the pipeline, but being the UK they'll no doubt get EDS to build the registry, which will take 8 years, go $80m over budget and cost £50+VAT /pic after filling a 6 page form. The main defect of Gowers was that he did exactly what this Bill does, writes prescriptions for balancing public interest vs. corporate benefit without understanding piggy-in-the-middle creators are squeezed from both sides. Considering we actually do the bloody work, this is disappointing to say the least.
The NUJ, AOP, BAPLA etc ought to be having a war cabinet, but I'm not aware anyone has even noticed yet, except a few members of those organisations, on EPUK.
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I am a professional photographer, a UK national, and have only recently become aware of this "orphaned bill" in the USA. Having read through the bill it appears that all the horror stories of this bill with regard to freelance photographers ability to earn a living selling copyrighted photographs are probably true. I have found a multitude of web sites highlighting the injustice of this bill and urging all artists to contact their "elected representative" on this issue. However, I am getting the distinct feeling that any co-ordinated, centralised response to this bill is actually in existence. I fail to see how me contacting my elected representative in the UK would be able to effect a bill in the United States. Is there contact information for anyone or anywhere out there where/who we can contact and lodge our objections to this bill with the hope that this someone can then argue the case against this bill in the senate or congress?
A petition and someone with a voice in the American goverment would seem like a minimum requirement to lodge our concerns with?
Apologies if this info is out there but I have been unable to find it and wish to add my voice to whatever challenge is being mounted.
To deal with ASMP's points:
The requirement to file a notification of use is only in one version (House) of the Bill. In any case, the way I read it, this will not be an electronic, searchable archive, you will physically have to go there to search it. I do not see how this will be much practical use to owners of allegedly orphan work.
True, but you will have to commence a court case to establish this. This is the main diffculty with the Bill : the cost/risk/benefit calculation renders legal action impractical unless very large sums of money are involved. Typically copyright infringements are small amounts, a few hundred dollars maximum. And typically they are extremely commonplace. Most pro photographers find out about one or two every month or so. How many lawyer-hours can be funded on this basis?
But the vast majority of commercial uses, in print and on the web, do.
And for the typical photographer, who has inventory of thousands, perhaps tens of thousands of images, each will have to be uploaded, details provided, fees paid, in order to register them as definitively not orphan works. It may also be necessary to register with multiple private registries in order to ensure their status is found, at least Brad Holland thinks so. The time and expense of the bureaucracy is why so few images are ever registered with the existing Copyright Office registry, and this gets even more difficult for non-US residents. There is no reason to believe privatised registries will be substantially different.
There is of course nothing inherently wrong with registries, in fact they are an excellent idea for preventing orphans occurring. There are much, much more elegant existing schemes such as the Handle system pioneered by www.doi.org, which provides a truly global DNS-like lookup system at a marginal cost of a few cents per image, is proven technology deployed around many universities and research libraries, and is already understood by some web browsers. There is already one image registry working in Italy, at mEDRA. But that is an open system and anyone can set up a registry fairly cheaply. If DOI registries were accepted you would see them springing up in India and Korea and ruining the monopoly this Bill intends. Registries as proposed by this Bill will be profit-driven, and driven by duress : the perfect situation for making money out of creators. These registries are just one big scam, with the big stick being the limitation of legal protection from copyright abuse that in practical effect will allow infringers to impose terms because arguing will require legal action and costs. It's blackmail and it stinks.
So the moment the visual registries exist and have been certified, all photos globally that are unregistered become de facto orphans. Or if they haven't got built by 2013, so nothing can be registered, then every image on the planet is fair game. The date is January 2011 instead, in the Senate version of the Bill.
Yes, they obviously realise that this legislation will generate an avalanche of spurious claims of orphaning and disputes about 'reasonable' payment. Nevertheless, small claims court judgements are uneforceable in the US as they are in UK, without taking the case to a higher court. And anyone not resident in the USA, who are even less likely to register their work and more likely to have it stolen, will have no practical access to these juidicial processes, but US infringers will have easy access to their work.
What this implies is that at some time in the future, maybe, all those works that are already registered with the Copyright Office will not additionally have to be registered with the new, proposed privatised registries. Congress had previously ruled out making the CO registry visually searchable for cost reasons which is why the requirement for privatised commercial registries was evolved. Which means creators will pay a 'tax' to gain the protection of the law to which they are entitled anyway.
You know, I started off neutral about all this. I've read all the arguments for, as well as those against, and I've read the various commentators who accuse Illustrators Partnership of speading FUD about a simple, small revision to US copyright law that is intended to allow, as Senator Leahy put it 'a Vermonter can restore a family photograph from three generations ago, even when the original photographer is no longer available to give permission'. Either the advocates are naive, or they are malign or both. They just have no clue about the realities of photography or infringement in the internet age. They are planning to solve crime by removing the law that makes it criminal, as Brad Holland puts it.
©A admin
You might want to sit down before you read the following:
http://www.asmp.org/news/spec2008/orphan_update.php
"..... ASMP believes that, on balance, the House version is a bill that photographers can support....."
Now wipe that coffee off your monitor and all together.... WTF??!!
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