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Orphan Works

http://leahy.senate.gov/press/200804/042408e.html

The bill is here.

Give it a careful read before you start screaming ANARCHY!
Consider the ramifications and consider what YOU will do to work with this for the benefit of yourself and others.
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Comments

( 29 comments — Leave a comment )
semisonicstar
May. 1st, 2008 02:34 am (UTC)
What I don't understand is their definition of "Enjoyed"... they can't seriously be saying their main reason is to make free art galleries of orphaned works or something can they? :/ I just don't see any compelling reasoning to support the bill.

But then I don't know many details so I'm somewhat ambivalent about all this anyway.
meradragon
May. 1st, 2008 02:37 am (UTC)
I'm just worried about all the potential loopholes this creates :/ Sure, it has great intentions, but people will find a way to take advantage.

I've been copyrighting everything, and I need to go back and put a copyright on everything I've ever made, now.
yamiko_michi
May. 1st, 2008 02:52 am (UTC)
after reading this my thoughts are why is this really needed? I would love to see a solid reason. The reasons they give are so flimsy most seem fabricated. They should put effort into real problems. Where's documented cases of people getting sued for restoring old family photos?
vickimfox
May. 1st, 2008 03:27 am (UTC)
The bills in the current congress are:

(S 2913 IS) 110th CONGRESS, 2d Session, S. 2913 - April 24, 2008 -
Mr. LEAHY (for himself and Mr. HATCH) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
:: This Act may be cited as the `Shawn Bentley Orphan Works Act of 2008'.

(HR 5889 IH) 110th CONGRESS, 2d Session, H. R. 5889 - April 24, 2008 -
Mr. BERMAN (for himself, Mr. SMITH of Texas, Mr. CONYERS, and Mr. COBLE) introduced the following bill; which was referred to the Committee on the Judiciary
:: This Act may be cited as the `Orphan Works Act of 2008'.

You can search http://thomas.loc.gov to find the latest status of these bills. They are currently in the respective chamber's committee.


If you read the bills themselves instead of press releases from the congressmen, you will oppose this legislation.

* It pretty much eliminates recovery to small business and individuals whose monetary loss may be small.
* It pretty much requires filing all artwork either in one of the Library of Congress designated electronic databases so that searches can be made or continue with the current registration practices.
* There is no mechanism to force the "reasonable search" requirement. And, the requirement is not enforceable.

With the internet and other means of obtaining art with very little trail to the original artist already making it difficult for small-time artists, this legislation will only make it easier for entities with deep pockets and resources to acquire and use artwork because the financial risks are being taken away. In the past, an entity might have to pay $150,000 for each violation; now if they can demonstrate a "reasonable search", they would only have to pay $15,000 for the violation.

Yea Hah! This legislation makes stealing "orphan works" a whole lot cheaper.

Small-time artists will just have to get in the habit of posting small images, covered with watermarks, and filing the artwork with the Copyright office.

I plan to send an email to my congressional team voicing my opposition.
lilenth
May. 1st, 2008 06:41 am (UTC)

That's a pretty bad piece of legislation.

Firstly, "reasonable search" isn't laid out, it's determined by the courts so the companies with the best lawyers will win even if all they did was a cursory search if they did anything at all. It's not enforced at all. So copyright holders are back to the same issue of having to have enough money to sue when someone steals their work, there's already cases where the big guys get away with thievery simply because the copyright holder can't afford a lawyer, this legislation will simply make it worse.

Secondly, we'll have to pay to register all our works. Again this is easier for big companies who have deep pockets. The small guy probably won't be able to afford to register everything he does. Furthermore it shouldn't be necessary to register our every doodle just to stop them from being taken without our permission.

As has been said, this won't benefit the general public in a major way. It'll screw over the small guy and help the big companies. People already lie to photo places about the origins of photos to avoid having to pay the photographer for copies and even the most inept person can scan a photo, clean it up and print it off decently, my uncle does that with his old photos all the time, so their restoral argument is straight out.

I could get behind it if it was -only- for the use of groups like museums and historians to copy things that might otherwise be lost or to display things to the public that are educational. Handing our rights to every tom, dick and harry though? Would just kill the small artist straight out.
czgoldedition
May. 30th, 2008 07:07 pm (UTC)
I could get behind it if it was -only- for the use of groups like museums and historians to copy things that might otherwise be lost or to display things to the public that are educational. Handing our rights to every tom, dick and harry though? Would just kill the small artist straight out.

Agreed wholeheartedly.
catanaition
May. 1st, 2008 06:50 am (UTC)
I would really like to hear how this will affect artists outside of the US.
ken_redtail
May. 1st, 2008 06:53 am (UTC)
Contrary to most people's belief, American law does not apply to non-Americans. Non-Americans should still be enjoying the same basic rights as they always have under the Berne Convention.
lilenth
May. 1st, 2008 07:06 am (UTC)

The problem is Americans will try to use our work under this orphan act then we'll have to sue them in the area of the infringement ie america and we'll get rogered by the stupid bit of legislation, whether or not we live in a country where it applies.

The law that applies is the law of where the infringement happened. Another thing they haven't addressed.
catanaition
May. 1st, 2008 07:08 am (UTC)
This was exactly what I was referring to.
ken_redtail
May. 1st, 2008 07:10 am (UTC)
That's why there's the Berne Convention. I'm pretty sure this legislation can only apply to matters between Americans.
lilenth
May. 1st, 2008 07:15 am (UTC)

No, it doesn't.

Suing and other legal action must take place in the area where the infringement took place, unfortunately that means -local- laws apply.

This is why websites have to obey the laws of their physical location, not the location of the owners. So what happens to all the people who use places like dA who are in the US? Their work will come under the American orphan act if it manages to get passed regardless of where the submitter lives.
ken_redtail
May. 1st, 2008 07:18 am (UTC)
Ah, the already cloudy and confusing land of the Internet. Must it get even more confusing?
lilenth
May. 1st, 2008 07:20 am (UTC)

There's nothing confusing about it, physical location of what happens = laws that apply. If a website has it's server in a Californian databank they have to obey American and Californian laws.
ken_redtail
May. 1st, 2008 07:24 am (UTC)
Where are each of the main hosts located?
As far as I recall, VCL is hosted in Sweden, or at least used to be, so Swedish law covers that.

Even still, since the copyright holder is a foreign national, wouldn't this be held by international law?
I'm pretty sure its a little more complicated than what you've described it as.
lilenth
May. 1st, 2008 07:32 am (UTC)

dA is located in California, Storm-artists.net is hosted on a server that is in on a server farm owned by a host one of four countries, a -lot- of the general ones are hosted in America. VCL isn't really a main host since it caters to a very small section of artists. Most people use

No, it would not, hence why handling copyright infringement in other countries is always a pain, because you have to sue there because -ONLY- their courts can demand compliance from the violator. When storm was hosted in Germany for a time we couldn't host anything that "displayed nazism" to the point where photos taken in a war museum were banned if they had nazi artifacts in them. Germany is also really strict on child porn so we had to remove anything that was in a grey area.
lilenth
May. 1st, 2008 07:35 am (UTC)

*owned by a host in one of four countries. (The orphan law would really create some confusing issues for storm since one of those countries is America).

*Most people use the big general art sites rather than the small one shot sites.
thaily
May. 1st, 2008 04:16 pm (UTC)
VCL moved to a US server.
lozpie
May. 1st, 2008 10:27 am (UTC)
so... what do we need to do? if we put an email address on every image uploaded to the internet, will that cover it? what if someone takes it and crops off the email and uploads it somewhere else? :s

I never get my art taken anyway but I'm just curious.
lilenth
May. 1st, 2008 11:17 am (UTC)

We need to lobby politicians to change the bills so it's acceptable.

Otherwise you could register, watermark and do everything else to protect your work and you will still run the risk of getting screwed by people misusing the orphan works bill.
ken_redtail
May. 1st, 2008 11:27 am (UTC)
Oh, that's going to happen regardless.

I've yet to meet an airtight law that didn't get taken advantage of.
lilenth
May. 1st, 2008 11:41 am (UTC)

I think limiting it to organisations such as museums for the express purpose of preservation and education would make it completely air tight. After all big media company can't exactly pretend it's a museum can it?
lozpie
May. 1st, 2008 01:56 pm (UTC)
oh :( I'm in the UK so I guess there isnt anything I can do to help?
lilenth
May. 1st, 2008 02:10 pm (UTC)

We can make sure that our government doesn't get the same idea and try to pass it here.
lozpie
May. 1st, 2008 02:12 pm (UTC)
oh you're in the UK too? :)

how do we do that? :S
lilenth
May. 1st, 2008 02:20 pm (UTC)

Basically there's already been rumblings about a UK orphan works thing, if it does become a reality, lobby your local politician about it, especially if it's as bad as the US one.
lozpie
May. 1st, 2008 02:21 pm (UTC)
okay :)
vdrake77
May. 2nd, 2008 03:51 am (UTC)
It kinda seems like, to me, at least, that the government wants you to pay 'insurance' for your artwork. Copyright it and put it into a database, both of which will cost money, I'm sure, and you won't really have to worry about your art being stolen.

On the other hand, if you don't, they're only liable for 15,000 instead of 150,000.

Heck, it's not even so much insurance as it is a tax on artists. Only instead of sending the IRS after you, they just don't overly care if your stuff gets jacked. I say we dump their tea in the harbor! :P
siridean
May. 13th, 2008 02:45 pm (UTC)
You know, I'm heavily reminded of WoW Patches whenever Bills become proposed, now. Is that a bad thing?
( 29 comments — Leave a comment )

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