Monday, April 28, 2008

Orphan Works Act = Thieves Charter?

Boy, I'd wish I'd written that line, but it belongs to the Editorial Photographers - UK, who's author, Tony Sleep wrote it (Why the Orphan Works Act is Uncle Sam's thieves' charter, 4/27/08).

I'll say that I've been very involved in the dialog about Orphan Works, and one of my biggest concerns has been, and remains, how this change in copyright protection will be consistent with the Berne Convention, and consistent with the word "shall" in the phrase that is in that little document called The Constitution, signed by the Founding Fathers, who decreed:

"The Congress shall have Power To...promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
I seriously believe that the Orphan Works Act, in whatever final form it takes, will have a brief lifespan, dying when someone is egregiously infringed and has the resources to take the constitutionality of the law to the Supreme Court, where, because I can't square it with the above sentence, it shall be struck down. Hopefully, during it's duration, all the decaying films and shoeboxes of interesting pictures will have been preserved that museums and others are squawking about as a part of their primary raison d'etre for pursuing this.

The meretricious Shaun Bentley Orphan Works Act of 2008, is, by all accounts, better than it's predecessors. The ASMP (Update on 2008 Orphan Works legislation, 4/24/08), APA, PPA, Imagery Alliance, Copyright Alliance, and others have done much to be applauded for, with the improvement of the language that appears in the Act's current form. Yet, in some ways, it's like counseling someone who kicks their dog every day as they pass by it, on a chain in the back yard, and applauding their improvement because it's now just a kick every other day.
(Continued after the Jump)

NPPA reported on it (New Orphan Works Bills Introduced In Senate, House, 4/25/08), without taking a position, Sen. Leahy's office put forth a release on it (Judiciary Leaders Introduce Bipartisan, Bicameral Orphan Works Legislation, 4/24/08).

One problem as noted by Public Knowledge (Orphan Works 2008: House and Senate Bills Introduced, 4/24/08) , is the Notice of Use Archive (NUA), in which "...only a description of the work (not a copy of the work) is required, every photographer that thinks they’ve taken a photo that fits a description is going to be pestering the user and claiming ownership." Right. How many photographers have taken the photo described as:

Horizontal photograph of two male hands, in business suits, shaking hands, flatly lit, with a black background.


US Capitol - Vertical photograph of US Capitol Building dome, on a bright and sunny day with a blue sky, and spring flora and fauna in the foreground.


Horizontal photograph of the Golden Gate Bridge, from Marin, at sunset, with the San Francisco skyline in the background.

Right now, the pre-registration process has a place for just a description, but that description is then followed up by an actual registration of images.

Podcasts are decrying this, with sentiments like "If these laws change, you'll have to pay to protect anything you make....even though you make the work yourself, it's not considered commercially yours, unless you pay money to actually own the rights" (YouTube video podcast here), another YouTube video that's very organic is here, but Meredith Patterson clears up some misconceptions about Orphan Works (pre-bill drop) on her blog - Six Misconceptions About Orphaned Works, 4/12/08. So as to not compound confusion, Cynthia Turner, and the good folks over at the Illustrator's Partnership penned a response to Patterson's piece, correcting some of those misconceptions - "Orphan Works – No Myth", and it too is worth the read.

All the links on this posting are critical reading - they affect YOUR rights, and your rights in the future. Don't care? Then don't complain when people steal your work in the future, and you have little to no recourse.

If you're a real legislative junkie, the Senate Bill can be read here, and the House version can be read here, and the Copyright Office has a page with reports and previous bill language links here. Note that each bill must be identical to the other, in it's final form. Not even a comma's placement can be different. Comparing the two, you can see that there's a lot of work to do.

How much time do they have? The House schedule shows 17 days in May, 19 days in June, 25 days combined in July and August, and 19 days in September, before they adjourn for the year. To make that worse, subtract 8 of those days in May because they are either Mondays or Fridays (when Members are in their home state districts, and thus not in DC) so now thereare 9 "working days" in May, subtract 8 days in June so there are now 11 "working days" in June, and subtract 10 days from the July/August 25 making that actually 15 "working days", and lastly, subtract 7 from the September period of 19 days so they are now at 12 days. This is a low of 47 days where the members are actually in DC and engaged, and are all assembled for a vote, and a total of 80 legislative days if you include those Mondays and Fridays where staff are in, and presumably working on this. The Senate's not much better. Add in to that mix the grandstanding that will be taking place for members up for re-election, and other things like the war, and, oh yes, the Presidential election! The focus this year, for the 47 or so days that our elected officials are actually all in Washington, means that these bills won't be getting much attention.

In the end, I concur with the perspicacious outlook that Ars Technica has, this bill won't pass this session (New Orphaned Works Act would limit copyright liability, 4/25/08). There will be lots to discuss, but it's the precursor to the next session, when, with a new President, and new session of Congress, whatever watered down (and thus, worse for creatives) version of the bill that meets it's demise now, will be the starting lineup for 2009. Get ready, it's going to be a bumpy ride.

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Anonymous said...

While generally speaking I agree with what you've written, I have to differ on your assessment of the Constitutionality of the proposed law. The language reads "shall have the power to secure...," not "shall secure..." It is an enabling phrase, not a mandating phrase. Congress, if it wanted to, could repeal the patent and trademark laws tomorrow, and it would be perfectly Constitutional.

If you want proof of the extreme latitude that the USSC allows Congress in this regard, consider that copyright terms have been extended for decades, mostly at the urging of Disney's lobbyists, and may in fact NEVER be allowed to expire. The USSC is fine with this, so long as the increments are technically "limited times." Keep in mind that ten thousand years is a limited time. "Forever minus one day" is a limited time.

In some ways, the OW law is a response to the fact that copyrights are probably going to be practically unlimited in duration from here on out - lazy artists and marketing people want to use stuff from decades ago, whose creators are dead or unlocatable, and they're making a Posner-ian "argument to social value" to try to keep from getting sued when somebody realizes that they stole a picture postcard their grandfather made in 1937. From their point of view, since they're not particularly creative and since their corporate sanctioned output WILL be registered nine ways from Sunday, it's a perfectly rational economic choice.


Anonymous said...

Darn it, I meant "repeal the patent and copyright" laws. They could also, of course, repeal the trademark laws, but that's a Commerce Clause issue.

Also, note that repealing any of the laws and not replacing them might be a violation of international treaties, but Congress has the power to do that. No Congress can bind any future Congress in any way. Treaties in force are part of the law of the land and must be obeyed, but the USSC will not attempt to prevent Congress from doing something that would violate a treaty so long as it was clear that they meant to do it and there was no conflict of law.


Anonymous said...

Thanks for the report. I think if the Orphan Rights Bill passes, all photographers should place their copyight notice directly on the edge of the photograph and require that it stay there when published. (e.g. it can't be retouched or cropped out.)

I know of one photographer who always required credit adjacent to his pictures even in high end advertising. His clients accepted it.

If clients complain we can say that we have no choice but to protect ourselves.

Anonymous said...

Who is really behind this bill? I find it hard to imagine that it's just a bunch of librarians and filmmakers wanting to make documentaries and grannies looking to clean up a bunch of old photos of the family from the 30's. So, cutting through the verbiage, who are the powerhouses pushing for this "reform?"

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