How the Orphan Works Bills Affects Visual Artists

H.R. 5889, The Orphan Works Act of 2008, was introduced on April 24, 2008 by House Judiciary Committee Intellectual Property Subcommittee Chairman Berman of California, full Judiciary Committee Ranking Member Lamar Smith of Texas, and Intellectual Property Subcommittee Ranking Member Howard Coble of North Carolina. It limits the remedies in a civil action brought for infringement of copyright in an orphan work. It amends Chapter 5 of title 17, United States Code, (Copyright law) by adding "§ 514. Limitation on remedies in cases involving orphan works."

Section 514 is the new limitation on remedies which the Orphan Works Act will impose on any copyrighted work wherever the infringer can successfully claim an orphan works defense, whether legitimate or adjudicated by courts to be conclusive.

Overview

• The Orphan Works Act defines an "orphan work" as any copyrighted work whose author any infringer says he is unable to locate with what the infringer himself decides has been a "reasonably diligent search." In a radical departure from existing copyright law and business practice, the U.S. Copyright Office has proposed that Congress grant such infringers freedom to ignore the rights of the author and use the work for any purpose, including commercial usage. In the case of visual art, the word "author" means "artist."

• This proposal goes far beyond current concepts of fair use. As acknowledged by the Register of Copyrights it is not designed to deal with the special situations of non profit museums, libraries and archives. It is written so broadly that it will expose new works to infringement, even where the author is alive, in business, and licensing the work.

• The bill would substantially limit the copyright holder's ability to recover financially or protect the work, even if the work was registered with the U.S. Copyright Office prior to infringement.

• The bill has a disproportionate impact on visual artists because it is common for an artist's work to be published without credit lines or because credit lines can be removed by others for feckless or unscrupulous reasons. This is especially true of art published in the Internet Age.

Coerced Registration

• The Orphan Works Act would force artists to risk their lives' work to subsidize the start-up ventures of private, profit making registries, using untested image recognition technology and untried business models. These models would inevitably favor the aggregation of images into corporate databases over the licensing of copyrights by the lone artists who create the art.

• The most common scenario of orphaning in visual art is the unmarked image. There is only one way to identify the artist belonging to an unmarked image. That would be to match the art against an image-recognition database where the art resides with intact authorship information.

• These databases would become one-stop shopping centers for infringers to search for royalty-free art. Any images not found in the registries could be considered orphans.

• There is no limit to the number of these registries nor the prices they would charge artists for the coerced registration of their work.

• The artist would bear the financial burden of paying for digitizing and depositing the digitized copy with the commercial registries.

• Almost all visual artists such as painters, illustrators and photographers are self employed. The number of works created by the average visual artist far exceeds the volume of the most prolific creators of literary, musical and cinematographic works. The cost and time-consumption to individual artists of registering tens of thousands of visual works, at even a low fee, would be prohibitive; therefore countless working artists would find countless existing works orphaned from the moment they create them.

• The Copyright Office has stated explicitly that failure of the artist to meet this nightmarish bureaucratic burden would result in his work automatically becoming an "orphan" and subject to legal infringement.

International Impact

• Because an unmarked picture cannot be sourced or dated, works by artists outside the U.S. will be as vulnerable to infringement in the U.S. as work by domestic artists.

• Presumably the Copyright Office and Congress expect non U.S. artists to register all their past and future art with the new hypothetical U.S. databases, or see their work exposed to commercial infringement under U.S. law.

• It is a violation of the Berne Convention for the Protection of Literary and Artistic Works for any country to impose registration on a rights holder as as a condition of protecting his copyright. See Article 5(2) "The enjoyment and the exercise of these rights shall not be subject to any formality (emphasis added)."

• The U. S. is also a member country of the Agreement on Trade-Related Aspects of Intellectual Property (The TRIPs Agreement). Article 13 of this copyright-related treaty specifies a Three-Step Test for exceptions to an artist's exclusive right of copyright:

Limitation and Exceptions to Exclusive Rights Member [countries] shall confine limitations and exceptions to exclusive rights to:

(1) certain special cases
(2) which do not conflict with a normal exploitation of the work
(3) and do not unreasonably prejudice the legitimate interests of the rights holder.

The Orphan Works Bill of 2008 violates the Berne Copyright Convention and fails the Three-Step Test of TRIPs.