Orphaned arwork law to be passed.. do not let it happen!

[cowsmanaut]

http://mag.awn.com/index.php?ltype=page ... 605&page=1

3 pages of rage inducing stupidity ahead.. US and UK members be aware!! They are trying to make it that if you do NOT register your artwork within a very short time of it's creation.. your artwork CAN be used by anyone for any purpose they like.

[Sophia]

Oh, I'm enraged...
... at the poorly researched scaremongering that passes for journalism in that article.

If there is pending legislation, where is the bill number? The only US legislation I found after doing some research was House Bill 5439, defeated in 2006, and the "Public Domain Enhancement Act," (PDEA) most recently introduced as House Bill 2408 and was defeated in 2005.

Since I'm not sure what the author of this article was talking about, I'll talk about the PDEA, as it seems most fitting to your worries. The amount of time you have to register your work is not short at all-- 50 years. In addition, the fee is $1, designed to be a token fee just to ensure that someone is still around to care about the copyright and considers it commercially viable.

In short, calm down, take a deep breath, do some research.

[Paul Stevens]

The fact that Microsoft supports the
'Orphaned Works Legislation' and that
photographers' associations oppose it
makes me lean to the opposition side.

I think it will take quite a bit of research
to overcome that feeling. The little
research I HAVE done seems to indicate
that international law is being evaded
by some tricky redefinitions of common words.

[cowsmanaut]

Ok, well a few important points appear to be missed in this.. it's not just about the money for registering.. though how would you like to have to pay $1 for every single photo, drawing, and home movie you've made for the past 30 years?

by passing this law, your works (all of them) become potentially orphaned and a person can use your work if they like providing they made a "reasonable search" for your works. Which is not the case currently. By imposing upon us the need to register, which we did not previously require for personal copyright, they basically say, if you do not register your work immediately, you will not be found under "reasonable search" because you will not be in the database and therefore they are no longer in the wrong. So even if it is 50 years.. it doesn't mean you are safe from copyright infringement for that time.. and what's worse is they are making it in essence legal for them to rip you off.

Now, as for the price, the companies responsible for registering the copyrights are private.. and while the cost now may be $1 that's still 1$ per image and it's a price that can be increased by those PRIVATE companies.

one article I read (which I'll post links to below) made this observation about the potential of copyright infringement.

"Without uncertainty, thieves can reasonably gamble that their thefts may never be detected, the work they steal won’t be registered, the owners of the stolen property will never find them and – if once in a while they do get caught – they can simply say the property had no name on it when they found it and dare you to sue them. From that point on, the risk will be all yours."

This reflects on 3 points. First that if you do not register they can do a quick search and confirm it not registered and use it without fear of litigation. Second that if they simply claim there was no name on the copy of the artwork when they found it, it provides them with a loophole in the "reasonable search". Third that under current copyright law that even without registering the article, you are still able to protect your rights under your right of personal copyright... which is not the case now..

Quote from the copyright office:
Carson: Copyright owners will have to register their images with private registries.
Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!

What's interesting also is that because it's through private companies.. it would appear that all current copyrights need to be reregistered in order to not be orphaned...

anyway.. I found a butt load of references in just a very short search.. but here are two I found interesting which have references of their own..

http://www.illustratorspartnership.org/ ... term=00264

http://www.sellyourtvconceptnow.com/orphan.html

[Gambit37]

Getting ready to go back home for the weekend, so can't look at this in detail now. But it sure is worrying.

tricky redefinitions of common words

George Orwell knew all about that.

[Sophia]

I'm not denying there are serious problems with the legislation that has been introduced in the past. There definitely are, and I can't say that I'm overtly in favor of any of it. However, my concern was simply that right now there's just not very much information. The fact there's currently no legislation proposed means there's no bill to read, so it's unclear what will actually be in any proposed law. It seems most of the people who write these articles simply take the most onerous provisions of the previous bills (all of which were defeated), put them all together, and attempt to get everyone very worried over it. They can say they "know a bill is going to be proposed," but, there isn't one right now.

In particular, one thing confuses me. Quoting from your first link:

Under current law, infringement cases follow two scenarios:

Scenario One: If a copyright owner has registered his copyright, he can get statutory damages and attorneys fees. As a result, it is relatively easy to find a contingency fee lawyer to take these cases. (That’s because the copyright owner doesn’t have to pay the lawyer; the infringer does). In addition, the copyright owner usually finds that he gets more in settlement than he pays in legal fees, if he decides to hire an hourly-rate lawyer.

Scenario Two: If a copyright owner has NOT registered his copyright, he can only get actual damages. In these cases, it is usually impossible to find a contingency fee lawyer [because in these cases, the copyright owner will have to pay - and may not be able to]. Moreover, it is often not wise for the copyright owner to litigate these cases anyway, because the settlement value is so small.

In other words, it seems like one already has to register to be able to get any real benefit out of copyright. I found no mention in any of the bills that I read about these private registries, and what role they would play. Surely the US Copyright Office would continue to offer registration services, and surely any search that did not include their records could not possibly be seen as "reasonable."

So, I do understand that there are serious problems with this sort of legislation, which is why I have not and will not say anything particularly in support of it. However, until we have an actual bill to read, it's just people getting upset over bills that have already been defeated-- which is sort of pointless!

[cowsmanaut]

that quote as I understand it refers to the potential of these changes under current copyright law.

"Under the orphan works legislation, ALL infringement scenarios are, as a practical matter, Scenario Two"

What they are saying is in those scenarios they would have reasonable doubt on their side or not and judge if they were to charge you the fee or not. By that I mean they would know if you were registered that it's a closed book case and winning was a no brainer.. under the new bill that would NOT be the case. As it is not based on if you registered it.. it's based on their "reasonable search" ... which then brings up that loophole again.. which was "at the time I found the work, there was no signature"..

What they are doing is amending the law to allow for "orphaned works" to be utilized . They see it as a stock pile of unused resources floating around that could be used to bring revenue into the country.. which I'm told is the reason the bill was proposed in the first place.

the problem is, that it makes it too easy, there is an obvious loophole and.. well there are a lot of other problems as well..obviously..

[cowsmanaut]

I should say though, it's unlikely to happen. They have shot it down in it's previous incarnations and is liable to be shot down now again.. just that we should be aware and if possible do our part to take down the bill when it arrives.. As mentioned in that other article.. when it IS finally published they will try to push the bill with the election they said.. so those in the states need to make their stand.. as a Canadian I can't do anything until it's presented here.

[Sophia]

Under the orphan works legislation, ALL infringement scenarios are, as a practical matter, Scenario Two

Right, my point was, I didn't understand why. The law said the person making the search had to document their search, and prove they had made a reasonable search. Of course, there's a lot of ambiguity about what is "reasonable," which is why this sort of thing is trouble, and why it has failed and probably would fail again if introduced again, unless they cleared up some of these issues.

To me, the biggest problem is that copyright is out of control-- the term is just ridiculously long, now. That's mostly the fault of Disney and other large media companies, that start up their lobbying machine every time one of their big properties (specifically, Disney's copyright on early Mickey Mouse cartoons) is about to enter the public domain. The public domain is significantly diminished as a result. The lawmakers aren't stupid, they know this. However, they can't annoy their wealthy patrons. So, instead, they put forth silly, half-assed laws like this that try to expand the public domain for everyone except the deep pockets who are financing their re-election campaigns, never mind how many precedents and international conventions they break in the meantime.

The real solution would be to roll back copyright to a reasonable length of time for everyone (and offer full protection for that period of time!)... but like that'll ever happen.