Orphan's Still in the Orphanage

from David Kravets Wired Blog Network

The Shawn Bentley Orphan Works Act of 2008 passed in the Senate and died in the House.

The act changes the rules and reduces and sometimes nullifies damages for infringing uses of so-called "orphaned" works as long as there was a "diligent" effort to locate the copyright owner. Orphaned creative works are those in which the copyright holder cannot be promptly located. [Note: there must be a parent somewhere!]

Lobbyists have secured the House will not take up the measure, at least not until after the November elections.

Dozens of copyright groups opposed the measure, saying it encourages infringement. Copyright expert Lawrence Lessig was against it as well. He said the bill was too vague when it comes to defining how "diligent" of an effort is required to locate a copyright owner before a work is infringed upon.

Digital rights groups like Public Knowledge hailed the measure. The group said "it would restore much needed balance to copyright law."

According to one commentor, the bill isn't dead yet. They're attempting "A fly under the radar" expedition by hotlining the issue. In order for a bill to be hotlined, the Senate Majority Leader and Minority Leader must agree to pass it by unanimous consent, without a roll-call vote. The two leaders then inform Members of this agreement using special hotlines installed in each office and give Members a specified amount of time to object – in some cases as little as 15 minutes. If no objection is registered, the bill is passed. The House has agreed to drop THEIR bill, but they agreed to take up the Senate bill (which passed this week) and substitute it for theirs. There is a high probability that the House will pass it this week when they come back, under suspension rules that allow them to Hotline the bill and pass bills by default.

The other comments are very interesting:

This was bad legislation, the real intent of which was to force content creators to spend more time managing or overseeing their copyrights than actually creating. It would have benefited owners of commercial copyright databases envisioned by the creators of this plan, and of course by casual and not-so-casual infringers. It would have changed our current copyright system, in which copyright is a right that automatically exists from the moment of the work's creation, into something else - a privilege that must be maintained at some expense to the creator.

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The method to register the artworks/pictures would have changed as well. They wanted a massive (in the text of the bill) database to keep thumbnails of the "registered" works.

For contact the interested party was only required to "publicly post". That could mean a posting on Craigs List or The Times announcements in assumptions that the artist will see it. No requirements for them to do the footwork in trying to find the artist before they STEAL the art and use it.

If the artist would have discovered their work was being used, the financial value would have been pennies, and if it was used in, say an advertisement you would have been given NO cut of the sales that the add generated under Orphan.

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Well at least some good came out of the economic crisis. The "Orphan Works Act" was a terrible piece of legislation that would have only benefited media corporations, who were the most likely ones to own and run the commercial "registration" databases, where they could have charged artists and writers a recurring subscription fee to KEEP work registered, or the media companies could register a creator's work before the creator and then guess who "owns" it? And anyone who wanted to claim a work was orphaned would probably only have had to look in those commercial databases to satisfy the "reasonable effort" to find the copyright holder - effectively and automatically orphaning any works NOT registered in those databases, and offering the actual copyright holder no legal remedies against the infringement (by re-defining it as "fair use"). Make no mistake, this was an attempt by the big media conglomerates to make a massive rights grab, and to effectively privatize the US Copyright Office.

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You mean how the copyright system was for the first 200 years of our nation???? Until 1976 the copyright term was 28 years with an optional 28 year renewal period...not some life plus 70 years nonsense. You had to actually put a copyright notice on your work to have it copyrighted.

The purpose of the copyright law is "to promote the sciences and useful arts" not to give a perpetual cash cow to corporations.

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For frequent updates on its status, check out http://ipaorphanworks.blogspot.com/

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Lets hope it stays dead. It is a huge threat to any artist who puts their work online (pretty much all of them). It would turn all major artist sites on the internet to a free art database. I'm very pleased it didn't make it through.

This is a very poorly written and misleading article. To say that a piece of legislation is dead when the author has not spoken to a congressperson, congressional aide or anyone actually involved in the process is just plain sloppy. But to take the word of a lobbist - one who is not noted as being either pro- or anti-Orphan Works is downright criminal.

This legislation is NOT dead! It will not be dead until it is defeated in a vote! Write your congressperson now and demand that they kill it in committee.