Orphan Bill Now Live

Joined: 09 Oct 2003 Posts: 431

Here is a link to the bills, but till I see them in Thomas, I won't be completely convinced that they're the final ones--but they appear to be. I've read some summaries of the bills and, although there are some slight improvements, most concerns from artists and photographers have not been addressed satisfactorily. "Diligent" searches remain undefined. Considering that the Copyright Office didn't want to define them, it's funny that the lawmakers are now trying to hold them to doing so.
http://illustratorspartnership.org/index.php

At the moment, this is one of the few artistic communities that isn't concerned about this bill. Unfortunately, the original Animation World was too alarmist in tone and that made a lot of artists question how serious the problem really is. A lot of people have read Radio Free Meredith's journal and her calm reasoned arguments against that article have lulled them into complacency. I've read the Copyright Office's report to Congress, both the oral presentation and much of the hundred plus page report and there is a lot to be concerned about.

Today, everything you create is your copyright. Nobody can use it without your permission. If this legislation passes, it adds a caveat to your copyright. If a diligent search for you fails to find you, your work becomes orphaned. Once a work is orphaned, noncommercial and commercial interests can use your work. If you make yourself known, you regain your copyright, will be paid whatever a reasonable rate is for the use. You cannot dictate those rates. The rates are supposed to be mutually negotiated, but you're in a bad position because you allowed your works to be orphaned by not taking steps to avoid it. You cannot sue for damages and it doesn't matter whether you registered your works with the copyright office (if the registered contact information is stale, the work is orphaned). The person who creates a derivative work, or a compilation of orphaned works, has a right to copyright the new work. A derived work cannot be stopped. You have no say over the way your work is used.

The basic difference between copyright law today and what it could be tomorrow is that it will be legal to use orphaned works after a still undefined diligent search. That is a fundamental change. There is nothing in the bills that gives anything back. These bills weaken the current copyright protection that everybody here enjoys.

A lot of people believe that this "diligent" search will be thoroughly exhaustive and leave no stone untouched so that there is no way for their copyrighted work to be accidentally orphaned. The purpose of these bills is to make it easier to use copyrighted works that become defined as orphans. Period. The bills make some efforts to not completely penalize copyright owners, but that is a secondary to concern to make it easier to use those works.

Here's a quick way to determine if your artwork can be orphaned. Let's start by assuming that no jerk has removed any identifying information from your art. We all know that never happens <said with oozing sarcasm>. Try to find any contact information about you with the resources that somebody, who found your image on some unspecified site, would use to find you. How many of the below suggested definition guidelines, from the Bills before Congress, will find you:
- records of the Copyright Office
- sources of copyright ownership information reasonably available to users
- industry practices and guidelines of associations and organizations
- technology tools and expert assistance, including resources for which a charge or subscription fee is imposed
- electronic databases
If your artwork can readily be found in all of the potential sources, you have nothing to worry about. If your artwork cannot be found through these sources, start being concerned because your work will be an orphan by law.

Below are some of the ways your work can be orphaned:
- A bad faith user removes identifying information from artwork. That pretty much orphans your work unless you've paid a registration image search database to include your art. Even then, 1% of the searches in the database will not return a valid result. There's just not much any honest user can do to find you if your contact information has been stripped from your work.
- Incomplete contact information. If all you've got is © Joe Schmoe 2008, you probably cannot be found. If you've registered your work with the copyright office, or some other database, you can probably be found. If not, do a Google search for the name on your copyright info and see if you can find yourself just by your name. If you cannot find yourself through a search, or you're hundreds of hits down the search results, your work is probably orphaned. Maybe you've got a website listed as well as your name on your image credit. Can somebody, who wants to use your image, contact you when they find your website? If not, your image might be orphaned because there is no way to know whether you're still alive to assert your rights of copyright. You need to have contact information on your website so that you can be reached to ensure continued copyright protection.
- Stale contact information. Copyrights are good for your lifetime plus 70 years. Is the contact information for your artwork always going to be current? Let's say that you have galleries at a dozen sites, a website, and have registered your works in some databases. When you change your contact information by moving, by changing phone numbers, or by changing your email address, can you still be contacted by somebody who wants to find out if your artwork is orphaned or not? If not, your work might be orphaned. If one of the web galleries your image was on goes away, will somebody, who saved your images, still be able to find you? Will anybody be able to find your heirs fifty years from now?

None of these concerns exist with the current copyright law. Every artist owns their work and nobody can legally use it without finding the artist and gaining permission to use it. These bills provide legal exceptions so that people can use orphaned works. The only way to prevent works from being orphaned is to be constantly ensuring that those works are covered in the recognized databases/registries that will be searched to find them and to always update contact information to keep it current.

The philosophical difference between the current law and orphan legislation is that current law requires that somebody, who wants to use a copyright owner's do all the work to secure rights of usage. Orphan legislation puts all the work on the copyright owner to be available to prevent unauthorized usage. For all intensive purposes, every new work will be public domain until the copyright owner takes steps to protect the copyright. Take the time to read full copyright report because even unpublished works, such as diaries and personal correspondence can be orphaned. Here is a quote, from the report in reference to the publication of a diary, "with respect to the first interest of protecting the author’s professional and creative interests, so long as the author takes steps to be locatable, such as by marking copies with his name and contact information, maintaining a web site with contact information, and/or enlisting an agent or other easily located representative, a user would be able to find the author and not publish the material under the limitation on remedies for orphan works."
http://www.copyright.gov/orphan/

If anybody is naïve enough to not think that there will be abuse of these bills, go to Amazon and do a search for "Night of the Living Dead" under DVDs. There are dozens of different companies releasing the movie because somebody forgot to put a copyright notice on the original prints sent to theaters decades ago. The people that made the movie aren't making a penny's profit from those sales. The infringers are making money from them. That's what happens when there are legal loopholes in laws. It's one of the reasons why the Copyright Act of 1976 was crafted to allow automatic copyright protection and not require renewals to continue protection. Orphan legislation is a giant loophole waiting to be exploited. A lot of companies and people are going to make money out of orphan legislation and it won't be the copyright owners.

The thing I find most annoying about the bills is that they describe a very legitimate concern about using old copyrighted materials for educational and historical purposes. In the body of these 20 page bills, there is only a brief mention for educational use where no compensation need be made when the copyright owner sees a nonprofit organization using the owner's works. The rest of the bills address commercial usage, not noncommercial use. A much less onerous change to the copyright law can address that limited need.

These are my concerns with the bills:
1. They penalize poor copyright owners.
2. Automatically place all published and unpublished works into public domain until the copyright owner takes steps to prevent it.
3. Are overly broad and allow vast commercial abuses of copyrighted works where the owner cannot readily be found.
4. The stated problem can be resolved with changes to the Copyright Fair Use provisions to allow educational and historical preservation groups to make use of orphaned works.

There are other arguments here at http://forum.daz3d.com/viewtopic.php?t=82951. That thread doesn't have "copyright orphan" in the subject line and the bills are now out, so it is no longer a theoretical discussion of pending legislation. It's very real. Anybody that isn't worried about it isn't doing enough reading on the subject.

Posted:Sat Apr 26, 2008 12:11 pm

While I still tend to doubt if either of those bills will ever pass both houses and also how the US would square that up with their agreement to abide by the Byrne Convention, I will take issue with one of your statements.

Quote:

How many of the below suggested definition guidelines, from the Bills before Congress, will find you:
- records of the Copyright Office
- sources of copyright ownership information reasonably available to users
- industry practices and guidelines of associations and organizations
- technology tools and expert assistance, including resources for which a charge or subscription fee is imposed
- electronic databases
If your artwork can readily be found in all of the potential sources, you have nothing to worry about. If your artwork cannot be found through these sources, start being concerned because your work will be an orphan by law.

neither of the bills require all of those to be sources to have copies of your work, only one will suffice and based on the bills even posting your work in the Renderosity gallery will constitute publishing on an electronic database.

Joined: 17 Feb 2005 Posts: 1739 Location: Underground

I agree with WillDupre on doubting that it will pass anyways, but the real sad part is truthfully there is not a whole lot artists can do about it, I mean sure we can sign online petitions and write letter to our Congressmen, but in the long run if the lobbyists that want this to pass give enough money to them the wants needs of the artists will be swept aside because we all know Money talks and sadly that is something that artists tend to lack in the amounts needed to make a difference in this world Rolling Eyes

By the way I have already contacted my Congressmen when this first came up before and will contact them again with my feelings on this.

Posted:Sat Apr 26, 2008 12:26 pm

and just for ballance since you mentioned Radio Free Meredith, here is what she said on the subject the other day http://maradydd.livejournal.com/376026.html

Posted:Sat Apr 26, 2008 1:04 pm

If ownership and usage of images were not an issue, there wouldn't have been such a dust-up over the ArtZone TOS a short while back.

Honestly - amending the existing copyright laws for the benefit of non-profit and educational purposes would be sufficient for the needs of the general public.

The lack of definition of what constitutes a "registry", and how an image would be found in said registry, are two of the major flaws in the current proposed bill. Who profits the most from the passage of this bill? Not the non-profit and education orgs; it's the "for profit" entities, who don't want to have to pay for the use of works they didn't create.

If this Orphaned Works act is to benefit the general public, let's throw some caveats in there; any commercial user of an "orphaned work" must register said use, and pay a fee into a general "Artists Rights Defense" fund. Any artist who can prove that their work has been used without their consent may challenge said use, with all legals fees being paid from the Artists Rights defense fund.

This levels the playing field. Commercial users still have to pay for the use of an image or work, thus encouraging them to go thru "proper channels" to find the original artist before going thru the headache of registering and paying for an "orphaned work", and the common artist will still have the means to challenge a larger commercial entity without being "shut out" by overwhelming financial costs.

Posted:Sat Apr 26, 2008 1:44 pm

BrotherHades wrote:

I agree with WillDupre on doubting that it will pass anyways, but the real sad part is truthfully there is not a whole lot artists can do about it, I mean sure we can sign online petitions and write letter to our Congressmen, but in the long run if the lobbyists that want this to pass give enough money to them the wants needs of the artists will be swept aside because we all know Money talks and sadly that is something that artists tend to lack in the amounts needed to make a difference in this world Rolling Eyes

By the way I have already contacted my Congressmen when this first came up before and will contact them again with my feelings on this.

BrotherHades, when enough voices are raised, and enough people contact their representatives, the lobbyists do not win. I'll be contacting my reps as well this weekend, in addition to signing petitions.

Joined: 07 Mar 2006 Posts: 417 Location: Off the Map

IndigoTea wrote:

If this Orphaned Works act is to benefit the general public, let's throw some caveats in there; any commercial user of an "orphaned work" must register said use, and pay a fee into a general "Artists Rights Defense" fund. Any artist who can prove that their work has been used without their consent may challenge said use, with all legals fees being paid from the Artists Rights defense fund.

An excellent suggestion.... Tell your senator.

Joined: 10 Nov 2006 Posts: 1383 Location: State of the Art

IndigoTea wrote:

Commercial users still have to pay for the use of an image or work, thus encouraging them to go thru "proper channels" to find the original artist before going thru the headache of registering and paying for an "orphaned work"

Umm, uhh, yeah...

Even if this bill gets passed, companies will still have to go through "proper channels" to attempt to locate the original artist. And they're pretty much going to end up paying for it anyway, since the work involvedgoing to be far more complicated than simply googling for names.

Joined: 07 Mar 2006 Posts: 417 Location: Off the Map

Incidentally, the bill is real.

Senator Patrick Leahy (D-VT) introduced it in on the Senate Floor on Thursday (4/24/2008) with the title A bill to provide a limitation on judicial remedies in copyright infringement cases involving orphan works. The co-sponser is Sen. Orrin Hatch (R-UT).

Here are Leahy's introductory remarks:

Quote:

Mr. President, today, I join once again with Senator Hatch to introduce a bill that will have a significant and positive impact on our cultural heritage. Hundreds of thousands of so-called ``orphan works''--works that may be protected by copyright, but whose owners cannot be identified or located--are collecting dust. Despite tremendous interest in using these orphan works in new collections and new creations, they often languish unseen, because those who would like to bring them to light, and to the attention of the world, fear the prospect of prohibitively expensive statutory damages. In other instances, the copyright in an orphan work may have expired, but potential users lack the information to be certain of the propriety of going forward with its use.

The Shawn Bentley Orphan Works Act of 2008 will remedy this situation. It will help potential users of orphan works find the owners of those works, and it will help the owners to receive compensation. The works will no longer be orphans; their owners will reap the financial benefits of their use, while the public reaps the creative benefits. More creative works will be used, contributing to our cultural and artistic heritage, and more creators will receive compensation for use of their work.

Our legislation permits the use of an orphan work only if the potential user performs and documents a good faith search for the copyright owner. If users cannot locate and contact copyright owners, they may use the orphan work. But if copyright owners later make themselves known, and if users have performed a search that qualifies under this legislation, owners are entitled to reasonable compensation. The user will not be liable for full statutory damages in those circumstances, but if a user does not perform that good faith search, the user will face up to $150,000 in statutory damages.

In practical terms, then, what does this mean? It means that a woman in Vermont can restore a wedding photograph of her grandparents, even if she cannot locate the photographer to get permission to do so. It means that a library can display letters of American soldiers wrote during World War II, even if the library cannot contact the soldiers or their descendents. It means that museums can exhibit Depression-era photographs, even if they cannot determine the name of the photographer.

What this bill does not do is create a ``license to infringe.'' In any of the above instances, if the users do not conduct a good faith search for the copyright owner, those users are in the same boat they are in now when it comes to infringement. This bill does not change the basic premise of copyright law: If you use the copyrighted works of others, you must compensate them for it. As an avid photographer, I understand what it means to devote oneself to creative expression, and I applaud anyone with the talent and commitment to make a living doing so. Orphan works are too important to our families, our communities, and our culture to go left unseen and unused.

I thank Senator HATCH for his help in developing this legislation, and I look forward to working with him to ensure that this bill becomes law. I am especially pleased to name this bill for Shawn Bentley. Several years ago, Shawn died, tragically young, but he left behind a legacy of affection and regard for all of us who knew him. He served Senator HATCH as a counsel for intellectual property, and it was he who first inspired this effort on orphan works. Naming this bill for him is a testament to his dedication to the issue, and his value to the Judiciary Committee.

I ask unanimous consent that the full bill text be included in the RECORD.

Joined: 07 Mar 2006 Posts: 417 Location: Off the Map

And here is the text of that bill, as entered into the Congressional Record:

Quote:

S. 2913

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Shawn Bentley Orphan Works Act of 2008''.

SEC. 2. LIMITATION ON REMEDIES IN CASES INVOLVING ORPHAN WORKS.

(a) Limitation on Remedies.--Chapter 5 of title 17, United States Code, is amended by adding at the end the following:``§514. Limitation on remedies in cases involving orphan works

``(a) Definitions.--In this section, the following definitions shall apply:

``(1) MATERIALS AND STANDARDS.--The term `materials and standards' includes--

``(A) the records of the Copyright Office that are relevant to identifying and locating copyright owners;

``(B) sources of copyright ownership information reasonably available to users, including private databases;

``(C) industry practices and guidelines of associations and organizations;

``(D) technology tools and expert assistance, including resources for which a charge or subscription fee is imposed, to the extent that the use of such resources is reasonable for, and relevant to, the scope of the intended use; and

``(E) electronic databases, including databases that are available to the public through the Internet, that allow for searches of copyrighted works and for the copyright owners of works, including through text, sound, and image recognition tools.

``(2) NOTICE OF CLAIM FOR INFRINGEMENT.--The term `notice of the claim for infringement' means, with respect to a claim for copyright infringement, a written notice that includes at a minimum the following:

``(A) The name of the owner of the infringed copyright.

``(B) The title of the infringed work, any alternative titles of the infringed work known to the owner of the infringed copyright, or if the work has no title, a description in detail sufficient to identify it.

``(C) An address and telephone number at which the owner of the infringed copyright may be contacted.

``(D) Information from which a reasonable person could conclude that the owner of the infringed copyright's claims of ownership and infringement are valid.

``(3) OWNER OF THE INFRINGED COPYRIGHT.--The `owner of the infringed copyright' is the legal owner of the exclusive right under section 106, or any party with the authority to grant or license such right, that is applicable to the infringement.

``(4) REASONABLE COMPENSATION.--The term `reasonable compensation' means, with respect to a claim for infringement, the amount on which a willing buyer and willing seller in the positions of the infringer and the owner of the infringed copyright would have agreed with respect to the infringing use of the work immediately before the infringement began.

``(b) Conditions for Eligibility.--

``(1) CONDITIONS.--

``(A) IN GENERAL.--Notwithstanding sections 502 through 505, and subject to subparagraph (B), in a civil action brought under this title for infringement of copyright in a work, the remedies for infringement shall be limited in accordance with subsection (c) if the infringer--

``(i) proves by a preponderance of the evidence that before the infringement began, the infringer, a person acting on behalf of the infringer, or any person jointly and severally liable with the infringer for the infringement--

``(I) performed and documented a qualifying search, in good faith, for the owner of the infringed copyright; and

``(II) was unable to locate the owner of the infringed copyright;

``(ii) provided attribution, in a manner that is reasonable under the circumstances, to the owner of the infringed copyright, if such owner was known with a reasonable degree of certainty, based on information obtained in performing the qualifying search;

``(iii) included with the use of the infringing work a symbol or other notice of the use of the infringing work, in a manner prescribed by the Register of Copyrights;

``(iv) asserts in the initial pleading to the civil action the right to claim such limitations;

``(v) consents to the jurisdiction of United States district court, or such court holds that the infringer is within the jurisdiction of the court; and

``(vi) at the time of making the initial discovery disclosures required under Rule 26 of the Federal Rules of Civil Procedure, states with particularity the basis for the right to claim the limitations, including a detailed description and documentation of the search undertaken in accordance with paragraph (2)(A).

``(B) EXCEPTION.--Subparagraph (A) does not apply if, after receiving notice of the claim for infringement and having an opportunity to conduct an expeditious good faith investigation of the claim, the infringer--

``(i) fails to negotiate reasonable compensation in good faith with the owner of the infringed copyright; or

``(ii) fails to render payment of reasonable compensation in a reasonably timely manner.

``(2) REQUIREMENTS FOR SEARCHES.--

``(A) REQUIREMENTS FOR QUALIFYING SEARCHES.--

``(i) IN GENERAL.--For purposes of paragraph (1)(A)(i)(I), a search is qualifying if the infringer undertakes a diligent effort to locate the owner of the infringed copyright.

``(ii) DETERMINATION OF DILIGENT EFFORT.--In determining whether a search is diligent under this subparagraph, a court shall consider whether--

``(I) the actions taken in performing that search are reasonable and appropriate under the facts relevant to that search, including whether the infringer took actions based on facts uncovered by the search itself;

``(II) the infringer employed the applicable best practices maintained by the Register of Copyrights under subparagraph (B); and

``(III) the infringer performed the search before using the work and at a time that was reasonably proximate to the commencement of the infringement.

``(iii) LACK OF IDENTIFYING INFORMATION.--The fact that a particular copy or phonorecord lacks identifying information pertaining to the owner of the infringed copyright is not sufficient to meet the conditions under paragraph (1)(A)(i)(I).

``(B) INFORMATION TO GUIDE SEARCHES; BEST PRACTICES.--

``(i) STATEMENTS OF BEST PRACTICES.--The Register of Copyrights shall maintain and make available to the public, including through the Internet, current statements of best practices for conducting and documenting a search under this subsection.

``(ii) CONSIDERATION OF RELEVANT MATERIALS AND STANDARDS.--In maintaining the statements of best practices required under clause (i), the Register of Copyrights shall, from time to time, consider materials and standards that may be relevant to the requirements for a qualifying search under subparagraph (A).

``(3) PENALTY FOR FAILURE TO COMPLY.--If an infringer fails to comply with any requirement under this subsection, the infringer is subject to all the remedies provided in section 502 through 505, subject to section 412.

``(c) Limitations on Remedies.--The limitations on remedies in a civil action for infringement of a copyright to which this section applies are the following:

``(1) MONETARY RELIEF.--

``(A) GENERAL RULE.--Subject to subparagraph (B), an award for monetary relief (including actual damages, statutory damages, costs, and attorney's fees) may not be made other than an order requiring the infringer to pay reasonable compensation to the legal or beneficial owner of the exclusive right under the infringed copyright for the use of the infringed work.

``(B) FURTHER LIMITATIONS.--An order requiring the infringer to pay reasonable compensation for the use of the infringed work may not be made under subparagraph (A) if the infringer is a nonprofit educational institution, museum, library, or archives, or a public broadcasting entity (as defined in subsection (f) of section 118) and the infringer proves by a preponderance of the evidence that--

``(i) the infringement was performed without any purpose of direct or indirect commercial advantage;

***

``(ii) the infringement was primarily educational, religious, or charitable in nature; and

``(iii) after receiving notice of the claim for infringement, and after conducting an expeditious good faith investigation of the claim, the infringer promptly ceased the infringement.

``(C) EXCEPTION TO FURTHER LIMITATION.--Notwithstanding the limitation established under subparagraph (B), if the owner of an infringed copyright proves, and a court finds, that the infringer has earned proceeds directly attributable to the use of the infringed work by the infringer, the portion of such proceeds attributable to such infringement may be awarded to the owner.

``(2) INJUNCTIVE RELIEF.--

``(A) GENERAL RULE.--Subject to subparagraph (B), the court may impose injunctive relief to prevent or restrain any infringement alleged in the civil action.

``(B) EXCEPTION.--In a case in which the infringer has prepared or commenced preparation of a work that recasts, transforms, adapts, or integrates the infringed work with a significant amount of the infringer's original expression, any injunctive relief ordered by the court--

``(i) may not restrain the infringer's continued preparation or use of that new work;

``(ii) shall require that the infringer pay reasonable compensation to the legal or beneficial owner of the exclusive right under the infringed copyright for the use of the infringed work; and

``(iii) shall require that the infringer provide attribution, in a manner that is reasonable under the circumstances, to the owner of the infringed copyright, if requested by such owner.

``(C) LIMITATIONS.--The limitations on injunctive relief under subparagraphs (A) and (B) shall not be available to an infringer if the infringer asserts in the civil action that neither the infringer or any representative of the infringer acting in an official capacity is subject to suit in the courts of the United States for an award of damages to the legal or beneficial owner of the exclusive right under the infringed copyright under section 106, unless the court finds that the infringer--

``(i) has complied with the requirements of subsection (b); and

``(ii) has made an enforceable promise to pay reasonable compensation to the legal or beneficial owner of the exclusive right under the infringed copyright.

``(D) RULE OF CONSTRUCTION.--Nothing in subparagraph (C) shall be construed to authorize or require, and no action taken under such subparagraph shall be deemed to constitute, either an award of damages by the court against the infringer or an authorization to sue a State.

``(E) RIGHTS AND PRIVILEGES NOT WAIVED.--No action taken by an infringer under subparagraph (C) shall be deemed to waive any right or privilege that, as a matter of law, protects the infringer from being subject to suit in the courts of the United States for an award of damages to the legal or beneficial owner of the exclusive right under the infringed copyright under section 106.

``(d) Preservation of Other Rights, Limitations, and Defenses.--This section does not affect any right, limitation, or defense to copyright infringement, including fair use, under this title. If another provision of this title provides for a statutory license that would permit the infringement contemplated by the infringer if the owner of the infringed copyright cannot be located, that provision applies instead of this section.

``(e) Copyright for Derivative Works and Compilations.--Notwithstanding section 103(a), an infringer who qualifies for the limitation on remedies afforded by this section with respect to the use of a copyrighted work shall not be denied copyright protection in a compilation or derivative work on the basis that such compilation or derivative work employs preexisting material that has been used unlawfully under this section.''.

(b) Technical and Conforming Amendment.--The table of sections for chapter 5 of title 17, United States Code, is amended by adding at the end the following:

``514. Limitation on remedies in cases involving orphan works.''.

SEC. 3. DATABASE OF PICTORIAL, GRAPHIC, AND SCULPTURAL WORKS.

(a) Establishment of Database.--

(1) IN GENERAL.--The Register of Copyrights shall undertake a certification process for the establishment of an electronic database that facilitates the search for pictorial, graphic, and sculptural works that are subject to copyright protection under title 17, United States Code.

(2) PROCESS AND STANDARDS FOR CERTIFICATION.--The process and standards for certification of the electronic database required under paragraph (1) shall be established by the Register of Copyrights, except that certification may not be granted if the electronic database does not contain--

(A) the name of all authors of the work, if known, and contact information for any author if the information is readily available;

(B) the name of the copyright owner if different from the author, and contact information of the copyright owner;

(C) the title of the copyrighted work, if such work has a title;

(D) with respect to a copyrighted work that includes a visual image, a visual image of the work, or, if such a visual image is not available, a description sufficient to identify the work;

(E) one or more mechanisms that allow for the search and identification of a work by both text and image; and

(F) security measures that reasonably protect against unauthorized access to, or copying of, the information and content of the electronic database.

(b) Public Availability.--The Register of Copyrights--

(1) shall make available to the public through the Internet a list of all electronic databases that are certified in accordance with this section; and

(2) may include any database so certified in a statement of best practices established under section 514(b)(5)(B) of title 17, United States Code.

SEC. 4. EFFECTIVE DATE.

(a) In General.--With respect to works other than pictorial, graphic, and sculptural works, the amendments made by section 2 shall apply to infringements that commence on or after January 1, 2009.

(b) Pictorial, Graphic, and Sculptural Works.--With respect to pictorial, graphic, and sculptural works, the amendments made by section 2 shall--

(1) take effect on the earlier of--

(A) the date on which the Copyright Office certifies under section 3 at least 2 separate and independent searchable, comprehensive, electronic databases, that allow for searches of copyrighted works that are pictorial, graphic, and sculptural works, and are available to the public through the Internet; or

(B) January 1, 2011; and

(2) apply to infringing uses that commence on or after that effective date.

(c) Publication in Federal Register.--The Register of Copyrights shall publish the effective date described in subsection (b)(1) in the Federal Register, together with a notice that the amendments made by section 2 take effect on that date with respect to pictorial, graphic, and sculptural works.

(d) Definition.--In this section, the term ``pictorial, graphic, and sculptural works'' has the meaning given that term in section 101 of title 17, United States Code.

SEC. 5. REPORT TO CONGRESS.

Not later than December 12, 2014, the Register of Copyrights shall report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives on the implementation and effects of the amendments made by section 2, including any recommendations for legislative changes that the Register considers appropriate.

SEC. 6. STUDY ON REMEDIES FOR SMALL COPYRIGHT CLAIMS.

(a) In General.--The Register of Copyrights shall conduct a study with respect to remedies for copyright infringement claims by an individual copyright owner or a related group of copyright owners seeking small amounts of monetary relief, including consideration of alternative means of resolving disputes currently heard in the United States district courts. The study shall cover the infringement claims to which section 514 of title 17, United States Code, apply, and other infringement claims under such title 17.

(b) Procedures.--The Register of Copyrights shall publish notice of the study required under subsection (a), providing a period during which interested persons may submit comments on the study, and an opportunity for interested persons to participate in public roundtables on the study. The Register shall hold any such public roundtables at such times as the Register considers appropriate.

(c) Report to Congress.--Not later than 2 years after the date of the enactment of this Act, the Register of Copyrights shall prepare and submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the study conducted under this section, including such administrative, regulatory, or legislative recommendations that the Register considers appropriate.

SEC. 7. STUDY ON COPYRIGHT DEPOSITS.

(a) In General.--The Comptroller General of the United States shall conduct a study examining the function of the deposit requirement in the copyright registration system under section 408 of title 17, United States Code, including--

(1) the historical purpose of the deposit requirement;

(2) the degree to which deposits are made available to the public currently;

(3) the feasibility of making deposits, particularly visual arts deposits, electronically searchable by the public for the purpose of locating copyright owners; and

(4) the impact any change in the deposit requirement would have on the collection of the Library of Congress.

(b) Report.--Not later than 2 years after the date of the enactment of this Act, the Comptroller General shall submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate a report on the study conducted under this section, including such administrative, regulatory, or legislative recommendations that the Comptroller General considers appropriate.

BTW: Sorry for the lengthy post. The text is not yet available anywhere that can be linked to.

Posted:Sat Apr 26, 2008 2:29 pm

I don't think anyone questions the reality of the bill at this point, I just question its ability to get through both houses, particularly considering how vaguely its planned implementation is laid out. reams of bills go through congress every year and very few of them even get to the presidents desk. though certainly it is a good idea for everyone to contact their representatives in Washington and let them know why you think this bill is a bad idea.

Posted:Sat Apr 26, 2008 2:34 pm

Agent_Unawares wrote:

IndigoTea wrote:

Commercial users still have to pay for the use of an image or work, thus encouraging them to go thru "proper channels" to find the original artist before going thru the headache of registering and paying for an "orphaned work"

Umm, uhh, yeah...

Even if this bill gets passed, companies will still have to go through "proper channels" to attempt to locate the original artist. And they're pretty much going to end up paying for it anyway, since the work involved going to be far more complicated than simply googling for names.

But the law as it's being presented does not define the extent the prospective user must go thru in order to prove "due diligence". Far better to have established protocols such as a registry of works used under the Orphaned Works Act. Any artist could access this registry, and quickly identify who has used their work, and for what purpose. Let the burden be on the commercial user of the work, not the artist with fewer resources available.

Why should an artist have to *pay* to establish ownership of something of their own creation? If a commercial entity wants to use an art piece that badly, they should have to pay for it, or pay to commission an artist to create a work. TANSTAAFL.

I share electronic versions of my artwork for peer review, and to communicate thoughts and concepts to others in a visual format. I do reserve the right to be able to benefit from my efforts, just like any software company expects that they should be able to benefit from the results of their labors.

Joined: 09 Oct 2003 Posts: 431

WillDupre wrote:

even posting your work in the Renderosity gallery will constitute publishing on an electronic database.

I doubt it unless Renderosity will be a resource referenced by the Register of Copyrights. There are thousands of online galleries throughout the internet. Just because an artist has works on one or more of them does not mean that anybody intending to use an orphan work has to search through every single gallery in the entire world to find the artist. Once artwork is separated from the location that has contact information to the artist, the artwork can potentially be orphaned if the established means of conducting searches doesn't help find the owner. Once it's orphaned, it no longer enjoys the full copyright protection that it had before.

To be more current with Meredith's journal, this is the reference you want to make and I have a comment on the bottom that hasn't been responded to: http://maradydd.livejournal.com/376191.html. Meredith hasn't been right about everything and is no more an expert about copyright law than I am and has read less of the Copyright Office's report than I have.

BrotherHades wrote:

I agree with WillDupre on doubting that it will pass anyways, but the real sad part is truthfully there is not a whole lot artists can do about it

As IndigoTea has already noted, your voices matter. The lack of opposition is the surest way to allow this to pass. Another factor to consider is that the orphan problem is mostly being couched in terms of historical preservation and providing protection for the nonprofit educational and historical societies that want to use old works to preserve America's history. That is a very noble purpose. A lot of legislators may not be thinking about the downsides of having this overly broad legislation. Although a lot of legislators are heavily influenced by lobbyists, they also need voters to continue being elected. The one thing that most concerns me is that this issue may not be picked up by the media because it greatly benefits them in using copyright orphans in their work.

Harbinjer just posted the Senate version, but the House one is marginally better in that it requires infringers to post a Notice of Use with the Copyright Office. I'm still doing a side-by-side comparison between the two. Senator Hatch, of course, only talks about the noble uses of this law and not the less haughty examples of artist and photographer works being bundled in clipart packages and used in other ways they would never have authorized had they been given the option. If you read the details for searches, they're still very unclear about what will be considered acceptable.

Joined: 10 Nov 2006 Posts: 1383 Location: State of the Art

IndigoTea wrote:

Why should an artist have to *pay* to establish ownership of something of their own creation?

The artist doesn't have to pay. You're only focusing on one option to demonstrate ownership. That's like belittling a park because it has a strenuous hiking trail through it, when there are perfectly valid non-strenuous hiking trails as well.

Rolling Eyes

Joined: 09 Oct 2003 Posts: 4576 Location: Memphis, Tn

PLEASE. READ. WHAT. YOU. POST.

Direct quote:

Quote:

(E) electronic databases, including databases that are available to the public through the Internet, that allow for searches of copyrighted works and for the copyright owners of works, including through text, sound, and image recognition tools.

That means Artzone, Rendo, here, etcetera. And thus, if you post on any sort of gallery, your works are NOT orphaned by this bill.

Joined: 09 Oct 2003 Posts: 448 Location: California

Three easy steps to keep your work form being orphaned ...

1) Open paint program.
2) Type in "Copyright" then the date and finally your name.
3) Save the image.

Done.

If you wanna get really fancy you might include your email or your website.

If you're too lazy to do that, well?

Joined: 09 Oct 2003 Posts: 126

Nerd wrote:

Three easy steps to keep your work form being orphaned ...

1) Open paint program.
2) Type in "Copyright" then the date and finally your name.
3) Save the image.

Done.

If you wanna get really fancy you might include your email or your website.

If you're too lazy to do that, well?

I think you're missing the point. The question is not whether the item is copyrighted or not, it's whether the work is orphaned or abandoned. The fact that it's copyrighted in the first place is a given.

Joined: 09 Oct 2003 Posts: 448 Location: California

Krew wrote:

Nerd wrote:

Three easy steps to keep your work form being orphaned ...

1) Open paint program.
2) Type in "Copyright" then the date and finally your name.
3) Save the image.

Done.

If you wanna get really fancy you might include your email or your website.

If you're too lazy to do that, well?

I think you're missing the point. The question is not whether the item is copyrighted or not, it's whether the work is orphaned or abandoned. The fact that it's copyrighted in the first place is a given.

No, in fact I get the point exactly. Like I said "to keep your work form being orphaned" If they don't contact you using info branded right on the work I think that will fail the diligent search clause.

If you don't check your email, well what did you expect.

Posted:Sat Apr 26, 2008 7:11 pm

Agent_Unawares wrote:

IndigoTea wrote:

Why should an artist have to *pay* to establish ownership of something of their own creation?

The artist doesn't have to pay. You're only focusing on one option to demonstrate ownership. That's like belittling a park because it has a strenuous hiking trail through it, when there are perfectly valid non-strenuous hiking trails as well.

Rolling Eyes

This key phrase?

"(D) technology tools and expert assistance, including resources for which a charge or subscription fee is imposed"

Furthermore, not just *any* database qualifies.

"(1) IN GENERAL.--The Register of Copyrights shall undertake a certification process for the establishment of an electronic database that facilitates the search for pictorial, graphic, and sculptural works that are subject to copyright protection under title 17, United States Code.

(2) PROCESS AND STANDARDS FOR CERTIFICATION.--The process and standards for certification of the electronic database required under paragraph (1) shall be established by the Register of Copyrights, except that certification may not be granted if the electronic database does not contain--

(A) the name of all authors of the work, if known, and contact information for any author if the information is readily available;

(B) the name of the copyright owner if different from the author, and contact information of the copyright owner;

(C) the title of the copyrighted work, if such work has a title;

(D) with respect to a copyrighted work that includes a visual image, a visual image of the work, or, if such a visual image is not available, a description sufficient to identify the work;

(E) one or more mechanisms that allow for the search and identification of a work by both text and image; and

(F) security measures that reasonably protect against unauthorized access to, or copying of, the information and content of the electronic database. "

Most artist databases do not have the capability to search by image content; certainly not ArtZone or Rendo.

It doesn't take much to be able to see how onerous the requirement would be to create a database that meets certification requirements.

Joined: 26 Jan 2004 Posts: 383

That can be interpreted as the user - i.e. the person who is required to make a diligent search for the "orphan work" as having to pay for the search.

Copyright is automatically granted to each artist as the work is created and published - no part of this bill ever addresses 'losing' copyright - you always have copyright this does not take it away - as Nerd said sign your work and date it, keep working files - the things artists currently do anyway.

If a corporation wants a work so badly they will have to make diligent search efforts - documented - hence the pay database. Any business would not like the resulting statutory fines (they still exist under this act) and possible civil litigation as well as bad press to just take an orphaned work without a massive and thorough search.