Request for Action Against Orphan Works Act

The Illustrators’ Partnership is taking a lead in organizing opposition to the Orphan Works Act. More information about the Act can be found in my March 1, 2006 blog.

Following is a note from The Illustrators’ Partnership asking for our help:

Artists and photographers have been joined by writers, textile manufacturers and others in realizing the threat of the Orphan Works Act of 2006 (HR5439). As we continue to spread the word, it’s time again to act in concert. Others in related fields will be doing the same. Starting in about one week – as soon as Congress returns from its Fourth of July recess, we’ll be emailing lawmakers in numbers. This notice is to give you time to get your letters ready.

First, we’re asking each of you to write your Congressional representative. Please note in your first paragraph that you are: a.) a constituent; b.) a small business owner; and c.) opposed to the Orphan Works Act. You can identify your representative by entering your zip code into www.congress.org. Second, please write to members of the House Judiciary Committee. 

Several members of the Judiciary Subcommittee are particularly important because they’ve already shown an understanding of the concerns we’ve expressed in previous letters. Please thank them for this and ask them to vote against this bill or table it until it an be properly re-considered and amended. Here are some of their names:

– Howard Berman (CA, 28th District)
– Darrell Issa (CA, 49th District)
– Bob Goodlatte (VA, 6th District)
– Howard Coble (NC, 6th District)
– John Conyers (MI, 14th District)

Below is one suggested sample letter. We’ll email you two more. Use any of these texts you like and feel free to modify them as you choose. You can edit, copy and paste the text of these letters onto your letterhead for faxing. In the letter below, please insert an introductory sentence. Again, if you are a constituent, say so at first and cite your profession. Because the bill is being fast-tracked, it’s critical that we write now. To join us, get your letter ready for sending the week of July 10.

Please post or forward this email in its entirety to any interested party.
_________________________________

SAMPLE LETTER:

The Honorable _________ ___________
U.S. House of Representatives
Washington, DC 20515

Via Facsimile
RE: HR 5439

Dear Rep. ____________,

(INSERT INTRODUCTORY SENTENCE(S) HERE) As a small business owner, I am writing to express my grave misgivings about the Orphan Works Act of 2006 (H.R. 5439), now before the House Judiciary Committee. I strongly oppose this bill.

The Orphan Works Act has the potential to do great harm to those of us who create intellectual property. It was drafted to allow museums, libraries and other not-for-profit institutions to legally exploit the creative work of authors who have died or abandoned their copyrights. Unfortunately, it would do this by legalizing the infringement of all works – old and new, registered or unregistered, published or unpublished, domestic and foreign, managed or abandoned, whenever a work is unmarked so long as an infringer asserts that he or she has made a “reasonably diligent search” to find the rights holder.

This would expose countless works of visual art to misuse because clients often require artists to omit identifying information from their work or because credit lines can be removed by reckless or unscrupulous users. Not only artists, but industries that license art, can be harmed by this carte blanche license to infringe.

In the interest of brevity, I am enclosing some basic objections I and other copyright holders have to this bill.

– The Act is written so broadly that its use cannot be confined to orphaned work situations.

– It would permit an infringer to determine when he or she has made a “reasonable effort” to locate me even though the infringer would have a financial interest in not locating me.

– It would be retroactive, which means that work I created under existing law would be exposed to infringement because I didn’t take steps to protect my copyrights which the Copyright Act never required me to take.

– It would expose my work to infringement immediately upon creation, even though I am alive, in business, and managing my copyrights.

– It would place an impossible burden of diligence on me to protect my work because I will never have the resources to police infringement, which can occur anytime, anywhere in the world.

– It would remove any meaningful remedies for infringement, even though the threat of meaningful litigation is the only means I now have to enforce copyright compliance.

– It would impose on me the burden of proving in court the amount of “reasonable compensation” I could collect from someone who has infringed my work as an “orphan.”

– But it would limit “reasonable compensation” to whatever sum an infringer is willing – or able – to pay.

– It would deny me injunctive relief in situations where the entirety of my “orphaned” work has been used in a so-called “transformative” work.

– And it would undermine my option to retain or sell exclusive rights to my clients because neither I nor my clients could ever guarantee that the work would not be used by others – even for purely commercial purposes.

– The inability to retain or sell exclusive rights would greatly decrease the market value of my work because market value is determined by the licensing potential locked up by exclusive rights.

– This bill would prevent me from restricting certain unwelcome uses of my art.

– And it could drive my work into low-end markets where I would otherwise never license my work.

– At present, the law does not allow infringers to claim my work by infringing it, but this legislation would let them.

– Yet by “limiting remedies,” the bill guarantees that the cost of suing an infringer could exceed whatever sum I might recover in a successful court action.

– While the bill would limit the amount I could recover from an infringer, it would set no limits on the amount an infringer could win from me in a counter suit.

– And while the bill would not legislate “formalities,” it would have the same effect because it would require artists like me to rely on marking, registering and meta-data as a condition of protecting our property.

– This would violate the Berne International Copyright Convention and fail the three-step test of TRIPs, which requires that exceptions to an artist’s exclusive rights should be limited to certain special cases, not interfere with an artist’s normal exploitation of his work, and not prejudice a rights holder’s legitimate interest.

In short, the Orphan Works Act fails to properly define the category of orphaned work and it sets the infringer’s bar of due diligence so low that it virtually guarantees abuse.

It would force into the courts countless business decisions that should be made in the marketplace and create problems that do not now exist but that would require the expansion of the entire Federal judiciary system to solve.<
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For those and other reasons, I ask you to consider the harm this bill can do to existing businesses and vote against it unless it is amended to do the following things:

a) Precisely define an orphan work as a copyright that is no longer managed by a rightsholder;
b) Raise the infringer’s bar of due diligence and define precisely the steps a user must take before infringing a work;
c) Eliminate the unrestricted use of a copyrighted work in a “transformative” work;
d) Restrict the use of true orphaned works to not-for-profit uses;
e) Restore full remedies for infringement as the only means rights holders have to protect their intellectual property.

Respectfully,
Your Name
______________________

Keeping rights to your work is easier than trying to get them back once they are gone. Do what you can to hold on to them.

Take my advice; get professional help.
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