Orphan Act

[chantico]

So who here knows about the Orphan Act? Anyone? If you do, and you know it's current state, than I'm sure you're probably just as upset as I am. If not, well, read on.

The Orphan Act is legislation that failed being passed last time through the house, and is now being redrafted with some interesting (read: Horrifying) new additions. Originally, the intent of the bill is a fairly honorable one-- open up orphaned artworks to the public domain for archiving purposes, orphaned artworks being those that have long been abandoned by their creators or whose creators and heirs have long since passed away. Problem being that this is a very hard thing to define, so the bill was not enacted.

This time around, they are trying to define it . . . by submitting something that could be devastating to visual artists in all mediums, break with international copyright law and sever more than a few international copyright treaties. As it works now, passive copyright laws mean that as soon as you produce something, it is under your copyright, and you may sue in the case of misappropriation (if you have registered your artwork under copyright, you win the right to sue for damages, as opposed to simply for removal or loss of income incurred). Under the new Orphan Act being put together, to ensure your copyright you would have to register EVERY piece of work you want protected with newly established commercial registries. If you don't, your work would be legally defined as orphaned. This includes: thumbnails, sketches, final pieces, in progress works, storyboards, doodles, etc. These orphaned works are then open to use by anyone, from some tween bastard stealing your character design as their new Pokemon avatar to major corporations appropriating mass amounts of artwork without paying the artists. The ever ubiquitous They are trying to formulate and pass this new bill by summer session.

This article is not terribly well written, but sums most of it up.
This page is running updates as they come through and providing information. I especially want to point out this article about the consequences and this one about the use of the registries.

Please pass this on if you at all care. This sucks, a lot.

Comments

[moonandserpent.livejournal.com]

http://maradydd.livejournal.com/374886.html

[tooth-and-claw.livejournal.com]

Awesome. I was not able to find any statements relating to the hearing that happened on march 13th, so I'm very glad that they've been located and distributed. This helps allay some worries, and provides a needed update. (I am especially glad to see the part about the regestries being rejected)

I'm still not convinced that there aren't going to be some problems-- after all, yes, companies would in fact have to prove that they conducted a reasonable search to the courts in case of an infringment, but that also means that the artist would have to be able to pay the legal fees and such to go up against them. And since some of the companies that have expressed the most interest are Google and Microsoft, well . . . those are some deep pockets that your average doodling joe doesn't have.

For the record, I am in favor of orphaned works being opened up to the public in general. My problem becomes how 'orphaned' is defined.

[sapphohestia.livejournal.com]

http://www.copyright.gov/docs/regstat031308.html

It seems that lawsuits are not expected to be the norm as proposed by the officials at the copyright office (who have been talking to a lot of interested parties and trying to find a fair and reasonable compromise and who will probably be considered the Experts as far as Congress is concerned). As proposed, if you catch someone using your work and they did a poor search for you, they're open to paying nasty fees. If the user honestly tried to find you (a diligent search), the creator gets payed a "reasonable" price. It's kind of like eminent domain - you might not make huge amounts, but it'll be on par with "the going rate." And since the user did make a diligent effort to find the creator, it's probably likely that the creator wasn't depending on the created work to be their main income - the settlement will be roughly equivalent to what they would have gotten through a pre-arranged agreement, but not super-big-bucks. This is a check that means people can't be intentionally elusive in hopes of suing the pants off someone later. The biggest drawback - that I see - is that when a creator can't be found, they risk having their work used to support a purpose they oppose (e.g. if an artist who loves rats takes a picture of their cute pet munching on a cookie and finds a pest-control company is using it to sell their rat-poison program).

But if a user decides to fight the lawful copyright owner after being notified they're in the wrong, the user opens themselves up to having to pay a lot more in fees and penalties than what they would have if they'd gone the "fair price"/"eminent domain" route and settled it amicably. Therefore the creator should only have to hire a lawyer to go after someone intentionally abusing the creator's copyrighted materials. In the law as laid forth, lawsuits and lawyers should be the exception, not the rule.

And in the event of a non-profit/commercial entity, if they use something copyrighted after doing their best to find someone to get permission, but then the creator shows up, the non-profit can immediately say "whoops! Our bad!" and remove it. The legislation outlines that when there's no profit-making going on, there aren't real penalties. This clause is - I suspect - so that libraries/museums/archives/etc can post materials designed to benefit society without having to find a way to scrounge up a couple million dollars with no-notice because it turns out there was a copyright holder they just couldn't find. But if they abuse the privilege and continue to use the material, they'll be just as liable as a for-profit abusive company.

NB: The proceeding interpretation is my opinion alone and I advance it in a purely personal capacity, not a professional one.