In short, the bill would define an 'orphan work' as any copyrighted work whose author any infringer says they're unable to locate in what the infringer decides is a 'reasonably diligent search.' Yeah, because people who knowingly infringe copyrights are SO diligent and ethical. That's a huge departure from existing copyright law. It's way, way beyond the current fair use standards for visual art.
- 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.
Thinking for longer than three nanoseconds about how this would affect my livelihood makes me want to take to my bed with the vapors.
"To repeat: even if 10 users (or 100) can find a given artist, this bill will allow a single infringer who can defend in court his failure to find the artist, to establish that the artist's work was an orphan for legal purposes. This would include any works, from professional paintings to vacation photos, including any pictures that reside or have ever resided on the internet."
I would have to go hunt down and pay the legal fees, at my own cost, to get back my copyrights on every image of mine that'd ever been infringed. Oh, and the infringers can also copyright their derivative work, based on something I created, which is currently protected under Section 103(a).
You can see why I'm opposing this, I imagine. If you also think this bill ought to die a horrible death, please take a minute to get in touch with your U.S. Senators and your House Representative. Look, here's a nifty form to handle that for you!
The House Judiciary Committee's Intellectual Property Subcommittee members are: Chairman Berman of California, full Judiciary Committee Ranking Member Lamar Smith of Texas, and Intellectual Property Subcommittee Ranking Member Howard Coble of North Carolina. And I hope they all pull their heads out and yank this bill. Or cry while they see it shot down.