After passing in the Senate, the Orphan Works bill has died in the House, at least until after the election.
Kevin Geiger sums it up:
Orphan Works legislation attempts to address a long-standing problem that recently came to a head at the Holocaust Memorial Museum, where curators are sitting on a vast collection of family photos from Holocaust victims – unwilling to exhibit them for fear of statutory damages and attorney’s fees. These photos are so-called “orphan works” with no identifiable owner. The problem of orphan works is very real. In short, an “orphan work” is one that is protected by copyright, but whose creator/owner cannot be identified and located. Given that copyright law currently protects your work for the course of your lifetime plus 70 years beyond your death, there is plenty of time to lose track of who owns what – especially in the case of unmarked works. Those in favor of Orphan Works legislation include most curators and archivists, librarians and publishers, writers and documentarians.
Essentially, the bill would create a “I made a good faith effort to find the owner of the work” defense. So, for instance, the good folks at ASFIA could put more of their archives of orphaned cartoons from 60 years ago online, without having to worry that an unfindable copyright owner will suddenly pop up and sue them out of existence.
I’m in favor of the Orphan Works Bill, but it seems that most of my fellow cartoonists — such as Ted Rall and Coleen Doran — are against it. They’re worried that the OWA would be a license to steal cartoons and other visual works.
Under any imaginable copyright law, there would be cases of people stealing art and getting away with it. I think it comes down to which people find to be a worse outcome: A copyright law that favors artists but hurts archivists, historians, museums, academics, etc; or one that makes things easier for archivists et al but at the price of letting a few more people “get away” with stealing.
Anyhow, I’m mainly posting this so that I have a place to store relevant links, since this issue will probably come up again sometime in the next year. (I hope it will, anyway). So, links: I debated the bill a bit with Ted and others in comments here. There’s a discussion on the Comics Journal messageboard. Posts in defense of the bill from Public Knowledge, Fractured Atlas, the US Copyright Office, The Animation Options Blog (1 and 2), Radio Free Meredith, Kynn, and Trixie Belden (1 and 2).
Also, a good article in Print Magazine opposing the OWA.
Do you think it would make sense to have different legislation that allows this “orphan defense” to only non-profit or other educational uses? Is there a reason this is not one of the requirements?
I was opposed to the bill that died for a few reasons. First, it defined making a “good-faith effort” as looking in some yet-to-be-created for-profit registries, so everyone currently holding a copyright would effectively have to re-register it. Second, it didn’t define (although it obviously could have) any kind of escrow requirement for reasonable royalties; instead, anyone whose work is taken has to sue in federal court, and can’t recover attorney’s fees. Third, and possibly worst for me, the citation requirement in the law, as written, works against the creator because, when I see a something published with the creator credited, I tend to assume that they were appropriately compensated for their work and approved of its use. With the orphan copyright act as written, there’s nothing that would stop whoever darn pleased from using ostensibly orphaned works in contexts that their creators would never have given permission for (imagine some neonazis with that archive of pictures from the Holocaust museum, complete with “courtesy of …” at the bottom of each picture).
Second, it didn’t define (although it obviously could have) any kind of escrow requirement for reasonable royalties; instead, anyone whose work is taken has to sue in federal court, and can’t recover attorney’s fees.
I don’t understand what that means.
I’m also finding it hard to imagine how neo-Nazis could do as you say without discrediting themselves even further.
I’ve always thought that the copyright period was just too long. Shortening it would alleviate some of these issues.
The escrow thing means that when you use a work whose creator you can’t find, you put aside some money from your revenues to pay them if they do show up. You don’t just say, “Ooh! I can put a credit line on this and use it for free.” It would be easy to set up some standard rate, the way that’s done for music.
As the bill stood, if someone were to use a work whose creator hadn’t paid to re-register it with a for-profit database, the creator would get bupkis unless they sued in federal court, and even then they wouldn’t get attorney’s fees. So unless you could prove actual damages of $50K or more, you’d be losing money to sue someone who took your work.
(And of course the neo-nazis would be discredited, but in civilized countries the creator of a work has the right to prevent their name from being associated with uses of that work that are repugnant to them.)
I figured it couldn’t mean that, because where would this money come from? The public library fairy? Look, if librarians can’t find the copyright holder no matter how hard they look, there fucking isn’t one.