Wonks and Librarians

Somehow, my last post on orphan works has become the fourth hit on Google when you search for “Orphan Works Act”, as of 12:30 pm EST on April 16th. This is contrary to everything I know about search engine optimization, but that’s for another day.

The point is that, as a result of the post’s high Google ranking, I’ve had a number of comments from the previously-mentioned angry illustrators, upset about what they believe orphan works legislation will do to their livelihoods, and I feel compelled to respond.

There is a lot of misinformation about the potential Orphan Works Act being spread by the Illustrators’ Partnership, most of which is embodied in Mark Simon’s recent article, “Mind Your Business: You Will Lose All The Rights to Your Own Art” (the lies begin in the title). Illustrators all over are swallowing these falsehoods whole, and have taken it as their personal mission to make sure no Orphan Works Act ever passes. A few people out in the blogosphere have done a nice job of addressing the many specific inaccuracies floating around – Meredith Patterson and kynn both go into great and entertaining detail – and I won’t address them here.

Here, I’m concerned with the assertion, made by Mia in a comment on my last post, that orphan works legislation “is a ludicrous scheme dreamed up by greedy corporations”. It’s not. It’s just not. For the last few years, major champions of orphan works reform have included Lawrence Lessig, Duke’s Center for the Study of the Public Domain, Eric Eldred, and The American Library Association. And don’t forget Register of Copyrights Marybeth Peters. These are individuals and organizations dedicated to serving the public good, to preserving the founding principles of copyright law, and to promoting the Progress of Science and useful Arts. They’re policy wonks and librarians.

Why do wonks and librarians care about orphan works? Because we see every day the terrible impact that ever-extending copyright terms are having on the ability of ordinary people to find, share, and build upon the creative works of the past. Because we are watching unique materials in our collections – fragile books, classic film reels, historic photographs – crumble, with no clear legal protections for those of us would like not just to preserve those materials, but resurrect them and introduce them to a new generation of users and researchers.

I can brush off a lot of the lies about potential orphan works legislation as just poor fact-checking, but when someone lumps me in with “greedy corporations” – the very corporations that got us into this copyright mess – I take it personally. The public benefit that would come from a reasonable orphan works act is real, and it is great. Librarians see it. Policy wonks see it. Many scholars and creators see it, too. Orphan works legislation is not about authorizing giant corporations to steal from starving artists. It’s about opening up a vast store of resources that have been made inaccessible through a series of bad policy decisions and that, in the age of the Internet, have new potential to reach and affect millions of people who never could have found them before. Orphan works reform was dreamed up by wonks and librarians, because we care about the public, we care about progress, and we want to do good.

3 thoughts on “Wonks and Librarians

  1. I am not lumping you in with greedy corporations, but just because your goal is just and right does not mean others are not trying to accomplish something else, either on purpose or because they have not though through the conesquenses. A reasonable orphaned works act is one thing. This legislation’s consequences to the ability of an artist to make a living is another thing entirely. Canada has an Ophaned Works law and process that no one is objecting too, so why do you think US artists are so riled up? Because they have nothing better to do? Just because a law pays lipservice to protecting artist rights does not mean there is any practical “I can make a living from my art” protection, unless you already have money, and lots of it.

    Britt Griswold

  2. I took a look at one of the links you posted that is refuting the charges that this is not a good bill. There appear to be a number of incorrect things there. http://maradydd.livejournal.com/374886.html
    1. “there is not bill” – maybe for another week or so. Advanced copies have been seen and only need to have a number attached to them before they are introduced.

    2. “copyright will still be recognized” – In name only. The effect of the legislation is to make it possible for infringers to pay a small fine. The cost of tracking them down becomes prohibitive. The practical effect is not protection. The cost of asserting and protecting rights will now be a black box, cost unknown.

    3. “Copyright will still be protected by international treaty” – Again In name only. Unless registration fees are paid (unknown amount) no practical protection will be available in the US. The legislation gets around the Berne Treaty by not requiring registration. But if you don’t register, there is no practical protection. The rest of the world may march to a different drummer, so my work may be safer overseas…

    4. “Others can not claim my copyright” – maybe yes, maybe no. She says she is not a lawyer and claims no authority on the subject. There are lawyers who claim otherwise. If someone makes a derivitive work of your unregisterd image, then registers it and makes a claim agains you and having the derivitive work. What will happen? Will the law recognize your rights? The courtroom is a crapshoot.

    5. “Artist are already at a disavantage under current law, this will not change” – wrong, flat out. While this law mandates registeries, which is a good idea, it takes away the stick needed to enforce user compliance, by burdnening artist with potentially onerous registration costs and time requirements, and then removing penalties for the incomplete searches users will preform. This puts us at an even deeper disadvantage than before.

    6. “Display of work will not automatically orphan works” – a red herring. If a work is taken, the identity of the author is separated from the art. Now the taker can claim they “found” it in that condition. It is therefore available to be defined as “Orphaned”. Assumming they also claim the checked out a few “registeries”, they now have a practical defense that will deture any lawyer from helping you with your case. There is no way to prove malice and intent. Any time you spend tracking down the offender and bring ing them to justice will not be compensated in court because this new law defines the penalty to the taker’s advantage.

    There are real problems with each of the rebutals offered. I would suggest those wishing to use orphaned works ask for an agreement the gets the blessing of artists, as other countries have done.

    Britt Griswold

  3. My apologies, Britt, I’ll have to disagree somewhat with your analysis.

    1) There is a bill, I agree. I saw it, and you can see them as well. ^_^
    I’m certain they’ll be up on Thomas eventually.

    2. Possible infringers who do not meet the criteria for use of the orphan works have to pay licensing fees, and if they acted in bad faith face the full force of penalties.

    3. Neither here nor there, but I think a lot of people misunderstand how international treaties work in copyright. International treaties are generally reflected through domestic law, by providing standards for local laws to follow. The treaties themselves are not “the rule” per se, but the law to watch are those that cover the kinds of copyright acts that are occurring in a particular jurisdiction.

    4. “Others cannot claim my copyright” is just as true under this legislation as under previous legislation. It’s always an issue, and as you note there are other issues. Derivative works, works for hire, etc., are not being affected. As a creator and fan and consumer of works, I’m far more disturbed by how the work for hire doctrine is currently used in practice than anything in this legislation- which is aimed to allow the use of truly “orphan” works, which comprise the majority of copyrighted content.

    5. The people who use the orphan works will have to submit their use to a registry. Artists can use the registry to search for those uses of orphan works, but they’re not required to register their works in said registry. Now, I’d like to see the use of this registry on all sides no-cost or reasonable, and that might become an issue for all sides depending on its implementation. I know I’ll be paying a lot of attention to how this goes forward.

    6. A red herring? People are specifically making the claim that displaying a work will orphan your work. It’s just not true. This law does not cause the creation of orphan works in any way. I’m assuming your concern is that people will attempt to take advantage of this law to act illegally by claiming that a work is orphaned when it should not be. One, you’re assuming bad actors, whom the law is not supposed to protect. Two, everyone, *acting in good faith or not (so no matter what their intent)*- will need to pay a licensing fee in the case of commercial use or else face the penalties of the law.

    Furthermore, the Copyright Office is required to study the progress of the databases and effects on small claims as part of both versions of the law, in case crazy things begin to occur.

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