Orphan Works or say goodby to your copyrights

Sam

Please take a minute now, or lose your ability to protect your images forever.

Sorry I can't seem to fix this post.


FROM THE ILLUSTRATORS’ PARTNERSHIP


Call to Action
Last Thursday the Senate Judiciary Committee endorsed their Orphan Works Act.
It is now headed for the full Senate.


If you’ve written before, now’s the time to write again.
Urge your senator to oppose this bill.


Because it has been negotiated behind closed doors, introduced on short notice and fast-tracked for imminent passage without open hearings, ask that this bill not be passed until it can be exposed to an open, informed and transparent public debate.


We’ve drafted a special letter for this purpose.
You can deep link to it here:
Contact your Senator in opposition to S.2913 NOW
The House Judiciary Committee is considering H.R. 5889, the companion bill now. Please write them again:
Contact your Congressman in opposition to H.R. 5889 NOW
2 minutes is all it takes to write your senator and representatives and fight for your copyrights. Over 68,000 e-mail messages have been sent so far.


Don't Let Congress Orphan Your Work


Please forward this message to every artist you know.


If you received our mail as a forwarded message, and wish to be added to our mailing list, email us at: ipa@twcny.rr.com
Place "Add Name" in the subject line, and provide your name and the email address you want used in the message area.
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jpl

Hello Sam,

I've been following the orpan works bill the past few days myself. I wouldn't go so far to say that I support it, but I don't think photographers and artists should have the knee jerk reaction of oposition the Illustrator's Partnership is trying to get with this email and letter. I would suggest anyone interested in protecting their copywrights read about the bill from several sources before deciding where they stand.

Some further reading:
http://www.copyright.gov/orphan/
http://www.publicknowledge.org/issues/ow
http://judiciary.house.gov/OversightTestimony.aspx?ID=571
http://arstechnica.com/news.ars/post/20080516-orphan-works-bill-clears-senate-committee-may-soon-find-home.html
http://techliberation.com/2008/04/25/new-orphan-works-bills-introduced/

Foochar

jpl wrote:

Hello Sam,

I've been following the orpan works bill the past few days myself. I wouldn't go so far to say that I support it, but I don't think photographers and artists should have the knee jerk reaction of oposition the Illustrator's Partnership is trying to get with this email and letter. I would suggest anyone interested in protecting their copywrights read about the bill from several sources before deciding where they stand.

I'd strongly agree with looking at several different opinions before reacting, and after having done so I would like to point out that there are some pretty substantial differences between the House and Senate version of the bill, that make the Senate version much less desirable. There are times when orphan works legislation is needed in my opinion, the challenge is to craft in a way that protects the both the copyright owners and the users, who in many cases have no recourse at this point (think software from a company that has gone out of business, at this point if you try to make copies of the software and later on someone acquires the copyright in a sale of assets etc, they could go after the user of the software for the much more substantial statutory damages, with orphan works legislation they would have to negotiate reasonable compensation.)

NANPA sent out a summary yesterday of the differences between the House and Senate versions, and I'm going to paraphrase it here, since it was the most concise listing of the differences that I have seen. Based on this summary I plan on writing my Senators encouraging them to incorporate the protections from the House version into the Senate version:

House version requires registration in order to claim orphan works protection - In other words if someone thinks a picture is an orphan work and is going to use it, they have to tell the copyright office in advance. They can't use it and when they get caught say "well I thought it was an orphan work"

House version requires the copyright office to certify commercial databases that facilitate searching for the copyright owner of a visual work, House version can not go into effect for visual works until either two of the databases are in operation, and have been certified or Jan 1, 2013 (whichever comes first).

House version includes protections if a user claims orphan works protection, is contacted by a copyright owner, and refuses to make a good faith negotiation. - In other words someone uses a photo that you have copyright to, you come across this and they refuse to negotiate a reasonable fee (i.e. a fee in line with what you would normally charge for the same use if they had come to you from the beginning) they lose orphan works protection and you can go after them for full statutory damages.

claudermilk

I've been following this for some time and have read the actual bills--a painful experience &a good example of why lawyers are not well-liked. IMHO they are still pretty bad and need rewrites. To me they are akin to letting the inmates run the asylum, way too easy for the thieves (oops, "infringers" ) to claim they searched and couldn't find the author so now have a free pass.

I still think the best nutshell comment on the whole thing was "the museums and libraries asked for a band aid, so Congress cut off our leg." To me all that needed to be done was a small modification to fair use to cover museums and libraries with their preservation activities--which is apparently what set this whole thing off from my understanding. As with so many bills, now so much egregious garbage has been added to make it unpalatable--at least to those with an interest in protecting their copyrights.

Sam

jpl, TRavis,<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" /><o:p></o:p>
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Thanks for taking the time to look at this and respond.<o:p></o:p>
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I have both the house, and the senate versions on my desk, and absolutely believe this is VERY bad for photographers, artist, or almost anyone with a creative work.<o:p></o:p>
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First it goes WAY beyond solving any legitimate issue with REAL orphan works.<o:p></o:p>
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Creates a requirement for a whole new commercial registration database. No costs or terms for this have been specified. You will comply, resistance is futile. This may violate, or skirt current international copyright laws. <o:p></o:p>
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Currently we have the legal ability to receive attorney fees, and punitive damages for infringement. This allows us to actually, in the real world protect our copyrighted works. The new law will eliminate attorney fees, and punitive damages. <o:p></o:p>
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It may also, (my interpretation) violate current US contract law.<o:p></o:p>
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Basically it looks like the courts will determine what a reasonable fee would have been, and enforce that. That looks like a retroactive contract created by the court. Typically courts can not create a contract, only enforce one.<o:p></o:p>
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Read under "Monetary Relief" <o:p></o:p>
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General rule: Section A “Subject to sub-paragraph (B) an award for monetary relief may not be made other than an order requiring infringe to pay reasonable compensation to the legal or beneficial owner of the exclusive right under the infringed copyright for the infringed work.”<o:p></o:p>
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Reasonable compensation: The term “reasonable compensation” means, with respect to a claim for infringement, the amount on witch a willing buyer, and a 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. <o:p></o:p>
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If you wouldn’t have made a willing agreement for whatever reason, too bad. The court will create a contract for you, and enforce it.<o:p></o:p>
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The infringe can also get a copyright for any derivative work made even if that derivative work was made from an infringed work.<o:p></o:p>
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Section B further states that under some other circumstances, no monetary claims can be made.<o:p></o:p>
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I am out of time today……off to work….to pay for these criminals taking my rights away.<o:p></o:p>
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Sam<o:p></o:p>
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Tango

im with you sam....chin up, remember there is still at least a Italy even after the fall of the roman empire....

Sam

Claudermilk,

I think you have the gist of it.


Sam

Sam

AaronNelson wrote:

im with you sam....chin up, remember there is still at least a Italy even after the fall of the roman empire....

Italy doesn't comare with the roman empire. Your rights after this will not compare to the rights you have now.

Sam

Tango

(thats my sarcasim at its finest)(im really saying thing are going to hell and we will be stuck with the local lordship)