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The Orphan Works Act of 2008 (tl,dr)

Journal Entry: Thu May 8, 2008, 2:15 PM


Background

A couple of weeks ago we observed something of a panic over the Orphan Works Act of 2006; despite the fact that the bill had been dead since September of 2006 there has been a lot of scare tactic fear-mongering being disseminated in an attempt to panic people into supporting a massive campaign against any possible future bill which might be introduced again.

Well, on 24 April the Orphan Works Act of 2008 was introduced to both the U.S. House and Senate. Since the same alarmist articles are starting up again I’d like to take the opportunity to write a journal with the facts on the matter; no exaggeration, no spin doctoring, no deliberate misinterpretations and above all no deliberate attempts to scare you onto one side or the other.

Orphan Works

Orphan works legislation is an issue of growing interest in Congress and among copyright owners and copyright users. Legislation was originally introduced in 2006, but did not advance to enactment. That legislation was entitled the Orphan Works Act of 2006, or H.R. 5439. The latest version of the legislation, the Orphan Works Act of 2008, is based upon the 2006 version with some significant changes.

First let’s define what an “orphan work” actually is, because a lot of the exaggerated information out there defines it either poorly or completely incorrectly.

An orphan work is NOT:

• A public domain work.

• A copyrighted work whose owner(s) or exclusive licensor(s) decline to license or sell their works for any price. (You were asked and deliberately said “No" ).

• A copyrighted work whose owner(s) or exclusive licensor(s) offer to license or sell their work to you for a price you are unwilling to pay (You were willing to license but they wouldn’t meet your price).

• A copyrighted work whose owner(s) you are unwilling to look for.

• A copyrighted work with little or no ownership information attached to it, such as a photographic negative or textile (not having your name on it doesn’t automatically make it an orphan work).

• A copyrighted work for which a statutory license is available, such as Section 115 of the Copyright Act, usually referred to as a compulsory mechanical license (Don’t worry about this one as it probably will never apply to you anyway).



Orphan works are copyrighted works whose owners cannot be located.

There is currently no statutory definition in the U.S. setting any standard for an orphan work and the proposed orphan works legislation would not create any statutory definition of the term "orphan works." The term “orphan works” is used to describe the policy issue and the legislation, but this definition would not be included in U.S. Code.

The orphan works problem is very real and it was created by a combination of factors.

For one copyright protection periods have been extended several times, currently your work is considered protected for your entire lifetime and for 70 years after your death and with an average term lasting well over a century that’s a lot of time to lose track of who might own something.

There is also the concern that a lot of the media that you are using to create many of these works won’t even outlast the duration of it's copyright in the first place.

We also have to realize that the actual copyright registration system is probably in need of an update or overhaul to make it more relevant to the realities of today.

These issues have to be addressed if we’re going to get a real solution to these problems.

International

Activity and debate on orphan works is not limited to the United States. A variety of countries have orphan work like provisions in effect today and other countries are considering orphan works provisions similar to the legislation in the United States.

Canada has an existing orphan works process already up and running. It is significantly different from recent discussions in the U.S. and the UK since it requires a formal application in advance of usage to the Copyright Board of Canada. The application is to obtain a limited license for uses that are pre-identified by the user. The Copyright Board of Canada determines an advance royalty to be paid by the user prior to use. The royalty is held in escrow by the Board. As of February 2008, there were 217 approved uses of orphan works.

In the United Kingdom the Gowers Review of Intellectual Property included a section on the orphan works issue. A report on orphan works was requested from the British Screen Advisory Council.

Finally the European Union High Level Expert Group on Digital Libraries presented an advisory report on copyright issues to the European Commission which included a section on orphan works.

Concerns

Regardless of who is discussing it the orphan works issues tend to address the same types of concerns;

What type of system to use is a common and valid concern, Canada already has a use-by-use system while others are considering a blanket approach as an option. There are also concerns about whether or not to limit it to certain types of works only and whether or not a statement or notice should be part of the process and if so who the notice should be filed with.

The search for the owner itself is also a primary concern; a standard needs to be created for what is or is not a “reasonable search”. Also should the search be more intensive if the proposed use is commercial and also what sort of evidence needs to be compiled as proof of what you’ve done and should the evidence and a statement be filed with any specific agency.

As for the search itself we would have to determine if a database should be created in order to assist in the searching and whether or not the technology even exists to make such a search feasible rather than a nightmarish task. Another concern is whether the Copyright Office should maintain any proposed database or whether the private sector should be let in on it and if they are what sort of certification process should be required.

There is also debate over accreditation or recognition if you have some information about the owner but were still unable to locate them.

There is also room for debate as to whether or not to allow only for non-commercial uses, or whether to limit use in any other fashion or to provide prohibitions for certain types of ‘ potentially objectionable ’ uses and if so who should be the one setting the definitions for that.

Finally there are concerns as to whether or not advance compensation should be required as is done currently in Canada and if advance payment is required the act would have to determine who should get the money if no owner ever appears to claim it. And we can’t forget to determine who would set the amount of compensation, whether or not the owner should still have the ability to stop the use despite the payment, what to do if the orphan use violates an existing exclusive use and what would happen if the owner wanted more money than the user was willing to pay.

In short there are a lot of concerns and a lot of approaches and now that we’ve outlined them a bit lets talk about the bills which were just recently introduced into Congress.


The Senate Bill


pdf of S. 2913

S. 2913, the Orphan Works Act of 2008, was introduced on April 24, 2008 by current Senate Judiciary Committee Chairman Patrick Leahy of Vermont and former Senate Judiciary Committee Chairman Orrin Hatch. The language and approach of S. 2913 is closely based upon the  language in the previous bill.

Like H.R. 5439 (The dead orphan works bill which caused the recent panic) from 2006, the 2008 legislation allows for a limitation on remedies, i.e. no statutory damages or attorneys fees, to be imposed against the user of a copyrighted work if the following is true:

• The user undertook a qualifying search (called a reasonably diligent, good faith search in 2006) to locate the owner and could not find him or her.

• The user identified the owner as much as possible when using the work (such as listing the initials of the photographer if they were on the back of the original print).

• With some exceptions for ongoing uses, stopping use of the work if the owner reappears and says “stop”.

• The user acted in good faith in searching for and negotiating with the owner.

• Paying back royalties for the use on a “willing seller, willing buyer” standard if the use was commercial in nature for certain categories of uses.

Unlike H.R. 5439 from 2006, the 2008 legislation includes the following:

• A study of the copyright registration deposit system by the General Accountability Office (GAO).

• A requirement that uses of orphan works be identified with a special symbol to be created by the Copyright Office.



The House Bill


pdf of H.R. 5889

H.R. 5889, the Orphan Works Act of 2008, was introduced by House Judiciary Committee Intellectual Property Subcommittee Chairman Berman of California, full Judiciary Committee Ranking Member Lamar Smith of Texas, and Intellectual Property Subcommittee Ranking Member Howard Coble of North Carolina on April 24, 2008. The language and approach of H.R. 5889 is based upon the language of the previous bill but differs more greatly than the Senate bill and addresses more of the concerns expressed by the creative community..

Like H.R. 5439 from 2006, the 2008 legislation allows for a limitation on remedies, i.e. no statutory damages or attorneys fees, to be imposed against the user of a copyrighted work if the following is true:

• The user undertook a qualifying search (called a reasonably diligent, good faith search in 2006) to locate the owner and could not find him or her.

• The user identified the owner as much as possible when using the work (such as listing the initials of the photographer if they were on the back of the original print).

• With some exceptions for ongoing uses, stopping use of the work if the owner reappears and says “stop”.

• The user acted in good faith in searching for and negotiating with the owner.

• Paying back royalties for the use on a “willing seller, willing buyer” standard if the use was commercial in nature for certain categories of uses.

Unlike H.R. 5439 from 2006, the 2008 legislation includes the following:

• A delayed effective date until the earlier of 2013 or the date on which the Register of Copyrights (currently Marybeth Peters) certifies two databases that can be used to search for pictorial, graphic, and sculptural works (not in the Senate version).

• A study of the copyright registration deposit system by the General Accountability Office (GAO).

• A requirement for users to file an advance notice of use with the Copyright Office (not in the Senate version).

• A requirement that uses of orphan works be identified with a special symbol to be created by the Copyright Office.

• Allowing a judge to award extra compensation if a work was registered (not in the Senate version).


Conclusions


Now if you’ve taken the time to actually read though this information you will see that the Orphan Works Act of 2008 does not propose to strip away every copyright which ever existed, it doesn’t legalize art theft and it does not seek to deny you any compensation or moneys for the use of your work.

It is, in my opinion, a fair and balanced approach to a current problem. It’s not a perfect system because the way copyright registration currently works doesn’t allow for the easy search of any owner and people will undoubtedly continue to find flaws and shortcomings in it as it begins the long trek through Congress once again.

However it is some of the better copyright legislation to wind its way through the halls of Congress over the last couple of decades and I personally do not have a problem with it as it’s language and intent is very much similar to Fair Use and I do not believe that the nightmare-like scenarios being pandered about as inescapable consequences will actually happen. If the bill continues on the course set by the House version there will most likely be enough legal grey area to scare off most people from attempting to use orphan works and in any event the bill still faces strong opposition from some quarters and I’m slightly doubtful on the bill’s chances on this second time through the legal system.

So we all can wait and watch and all that I ask is that you all take the time to at least educate yourself on the facts before you continue to disseminate fear-mongering interviews and articles amongst yourselves.

If you are going to choose to oppose or support anything base your position on the facts.



Add a Comment:
 
:iconsibyl-6:
Sibyl-6 Featured By Owner Sep 27, 2008
Thanks for clarifying. Your explanation was refreshingly straight forward. I became aware of this through some rather muddled journal call-to-arms and didn't understand why everyone was so scared. Your journal reassures me that I wasn't just reading the bill incorrectly. :wave:
Reply
:icondrybonesreborn:
DryBonesReborn Featured By Owner Sep 27, 2008  Hobbyist Digital Artist
I heard they passed it. :(
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:iconstoned-squirrel:
Stoned-SquirreL Featured By Owner Jun 12, 2008
So does this affect the "instant copyright" law (or whatever it is)? I've heard a few people say now everything must be registered to be considered copyrighted... but I didn't see it really mentioned in the House bill's PDF (not that I understood a good part of it).
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:iconrealitysquared:
realitysquared Featured By Owner Jun 13, 2008  Hobbyist General Artist
The actual act of registering your copyright greatly strengthens your claim in the event of an infringement and while this bill is intended to strongly encourage proper registration it does not require it.

Anyone who has told you that you'll be forced to spend hundreds or thousands of dollars to register or face being stripped of your copyright is simply trying to scare you.
Reply
:iconstoned-squirrel:
Stoned-SquirreL Featured By Owner Jun 13, 2008
Okay, thanks. :)
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:iconomegakat:
omegakat Featured By Owner Jun 7, 2008  Professional General Artist
It's a good idea but maybe they should take another look at how much money you are required to pay to register a single piece of artwork with the Copyright Office ($35 online & $45 paper application). For many of us, their current fees would put us into bankruptcy to register each of individual pieces.

The reason to register with the CO is so that you have legal options open to you if someone steals & uses your work. If your work isn't registered, you are likely to lose in a court case since the burden of proof is on you to prove that you created the work (along with the date of creation).
Reply
:iconcharlie-brown:
Charlie-Brown Featured By Owner May 25, 2008  Hobbyist General Artist
This doesn't affect me, being in NZ and all. But I don't see how this will change anything. All it really does is what it says it does (gives a workaround on the copyright if you can't find the owner).

Of course this will be abused, everything is, but I doubt that people who are out to steal your art would bother justifying it with this, they would probably just steal it.

If you really want to "protect" yourself you should do what you should always do anyway and watermark your work or use a good signature.
Reply
:icontrelore:
TreLore Featured By Owner May 13, 2008
Thanks again for all the info
Reply
:iconpinaloca:
pinaloca Featured By Owner May 13, 2008
Thx for the info.
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:iconblanzeflor:
Blanzeflor Featured By Owner May 11, 2008
What concerns me is that on a site such as dA, one does not have to be a member of dA in order to access the deviations. People can just browse, copy and paste...and can be used without our knowledge by nefarious "drive by" art thieves.
Reply
:iconavalik:
Avalik Featured By Owner May 13, 2008
People already do that and the Orphan Bill won't change that.
Reply
:iconblanzeflor:
Blanzeflor Featured By Owner May 15, 2008
Too true.
The Libertarian streak in me must be a million miles long.
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:iconnukapai:
nukapai Featured By Owner May 11, 2008  Hobbyist General Artist
(Just quickly wanted to add some information from an extremely reliable and level-headed source; the UK Association of Illustrators/AOI):

[link]

They don't encourage hysteria, but at the same time, they do state:

[quote]
This is of concern to UK based illustrators, particularly now with the increased worldwide accessibility due to the web. [b]Work created in the UK and published or distributed within the UK, or work created in the UK specifically for publication and distribution in the USA, may be used and treated as orphan works in America.[/b]

HR 5439/The Orphan Works Act of 2006 would force all rights holders, [b]regardless of nationality, to rely on U.S. registries[/b], metadata and notice as a condition of protecting their copyrights within the U.S. The bill would not legislate formalities, but would “limit” or abolish meaningful remedies for infringement, thus exposing to infringement the work of authors who have not imposed formalities on themselves. Authors who discover that their work has been infringed - and who can identify and locate the infringer - can apply to the infringer for what the infringer considers “reasonable compensation.” Absent an agreement, the infringed author must bring a legal action in U.S. Federal Court and bear the burden of proof regarding the market value of his or her work in the infringer’s market. The bill would deny an infringed author statutory damages, attorneys fees and other court costs and expenses, but it would not limit the amount of attorneys fees or damages the infringer could obtain from the author in a counterclaim.[/quote]
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:iconnukapai:
nukapai Featured By Owner May 11, 2008  Hobbyist General Artist
"Will it concern works at Deviantart?"

Well. Here's the thing. Say someone collects up a ton of the works here on Deviantart *fully aware where they came from*.

They then create a "stock" website and *claim* they don't know where the work came from.

Now anyone can go to this middle-man and ask him "hey, do you know where I could find the original artist?". The middle man says: "Nope" (of course, we know he's lying, but at that point it wouldn't matter).

Bingo! You've got an "orphan work" and the use of it would be deemed legitimate.

Yes, I realise the above is a cartoonish example, but it illustrates (pardon the pun) the real consequences of this act.

The definition of reasonable effort for finding the originator has to be airtight - and it won't be. It is the perfect loophole, which makes this an act of legalised theft.

The thing that makes me FUME about the proposed act, is not just the above, but: as a UK resident, why the F*** should I have to pay a private US agency for the right to be recognised as the author of my own work?

Scaremongering is not good, but expecting this act not to be exploited is, frankly, naive.
Reply
:iconblack-allison:
Black-Allison Featured By Owner Jun 4, 2008
Theoretically, you can then nail the middleman who I really see as a bigger issue here because he's still running around distributing your work to other people.
Reply
:iconblanzeflor:
Blanzeflor Featured By Owner May 11, 2008
"Scaremongering is not good, but expecting this act not to be exploited is, frankly, naive."
You hit the nail on the head!
Frankly, it makes me want to take down my entire gallery. Not that I think I'm some undiscovered genius, but I'm sure middle school and high school kids steal stuff on dA all the time without ever having an account.
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:iconrealitysquared:
realitysquared Featured By Owner May 11, 2008  Hobbyist General Artist
If you had read my second journal on the subject you'd be aware that the lawmakers are completely aware of the fact that some poeple may try to abuse the system and wish to construct the criteria to prevent the absurd situation which you've stated here.
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:iconrageisthenewblack:
rageisthenewblack Featured By Owner May 11, 2008
I said something similar to that and everyone told me I was wrong and that the bill had provisions or regulations for things like that and never really explained it......but I agree with you.
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:iconnukapai:
nukapai Featured By Owner May 11, 2008  Hobbyist General Artist
Just because people tell you you're wrong, doesn't mean you are.

And the other way 'round too; of course. ;)
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:iconrageisthenewblack:
rageisthenewblack Featured By Owner May 11, 2008
Yep.
No, because I'm always right! lol... I kid, I kid...
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:iconmcculs:
mcculs Featured By Owner May 11, 2008
Thank you for doing this, many deviants I know are misinformed about this bill.
Thank you again
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:iconathansor:
Athansor Featured By Owner May 10, 2008  Professional Photographer
While I maintain a somewhat neutral stance on this issue, I have yet to have come across a compelling reason for WHY this bill is needed. There is ample artwork out there that *can* be used, for free, or for a small fee, so I simply don't see why "orphaned works" NEED to be used.

If, for instance, no one is able to find me, and wants to use one of my romantic images of pretty women...why can't they search for me...fail to find me, and say "Rats!"--and then go find another image to use? Or another piece of music...or another work of art.

I honestly don't think my world has lost anything, because I lose access to these "orphaned" works. I don't think that the fact that I'm an individual, creating art for the fun of it, or a non-profit agency wanting to create something that will bring in millions of dollars to feed the hungry should make a difference--*I can find another work to use, if I can't find the owner!*

If I want to buy a house that's been empty for years, the onus is on me, to find someone to buy it from. If I can't find an owner, I can't buy it. If I want to pick some flowers from someone else's property--if I'm a decent person, I try to find the property owner, and ask them if I can pick them...I don't just pick them, because I can't find the owner...instead, I go buy some flowers at the store...or find someone else who will let me pick their flower, or just plain *do without*.

If, at the end of the day, there are thousands and thousands of works where we can't determine the copyright, then I'd say there should be thousands and thousands of works we can't use.

To me, this is so obvious, that it is baffling that the need for a bill has come up--it certainly does not seem to provide any additional protection for artists, it just gives people who want to get something for nothing (and I don't mean that pejoratively--I mean it literally) a way to do so...and I don't see a need to protect the rights of people who want to get free things. Getting something for free is lovely--but it's not a right. ;)

I am genuinely interested in knowing *why* this is so necessary--so much so, that taxpayers time and money is being spent on it, instead of more important things. :)
Reply
:iconken1171:
ken1171 Featured By Owner Aug 13, 2008  Professional Digital Artist
They justified the bill by giving examples of ancient photos and video footage found at somebody's attic that have great historical value, but that cannot be displayed at museums because the author cannot be found. Those cannot be replaced and thus would justify the aforementioned bill to become law, since museums fear to display such items under the penalty of being sued would the author showed up out of nowhere.

On the other hand, there is no doubt that people will exploit every loophole on this bill to their advantages, and artists will be forced to "volunteer" to register their artwork properties to add at least some layer of protection. In other words, the artists are the ones paying for the bill in cash from their own pockets. If artists worry about that then it's called "paranoia". No wonder there is so much confusion going on everywhere about this...
Reply
:iconrageisthenewblack:
rageisthenewblack Featured By Owner May 11, 2008
That's very true...
Reply
:iconshadow-of-ice:
shadow-of-ice Featured By Owner May 10, 2008
Thankyou for this, I mean obviously there are still concerns. Unfortunately grey-areas can work both ways but it's good to et a perspective on this that's not all out fear mongering.
Reply
:iconblackittyrose004:
Blackittyrose004 Featured By Owner May 9, 2008  Hobbyist General Artist
This article and well thought out submission on the Orphan Act Bill is greatly appreciated. It is all too often that people get caught up in a frenzy, and as I've seen over the past few weeks that's just what has happened. As some have stated, I am as well inclined to oppose a bill that would put any "faith based" artist search in it's terms..I know that this bill is up for discussion and revision. And I will research and follow it's trek through congress to see how things go.

I do hate to seem like one of the "fear mongers" but honestly, anything that would be done on an honest or "faith" based search..as in a person "trying" to find the artist...well I'm not so sure I'd really trust ANYONE to actually do that.

However, I do agree that there most likely will be so much grey area that most people will not even tango with the "Orphan Act" unfortunately there will be that 10% that will, and I feel that those people affected by the wrong side of this bill will be furious, and will have a right to blow things out of proportion..if it does come to that.

Our system is never perfect..and I'm sure will always be far from it. But I too urge people to find the true facts, and go with their own feelings upon those facts..

Thanks again for this..and the other article posted on your viewing of the session!

:blackrose:
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:iconrealitysquared:
realitysquared Featured By Owner May 11, 2008  Hobbyist General Artist
My latest journal contains a link to the House Intellectual Property Subcommittee discussing the issue May 7th- you may want to check it out.
Reply
:iconblackittyrose004:
Blackittyrose004 Featured By Owner May 11, 2008  Hobbyist General Artist
Thanks for the update and info..I will definitely check it out!
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:iconkariannlax:
KariAnnLax Featured By Owner May 9, 2008  Professional General Artist
If I had to choose 3 top journals to watch out of the scads of people on this site, yours would make top 3 hands down.

I really appreciate your thorough nature, and your delving into things that I know you barely have time for with your schedule to make things easier for the rest of the gen pop to digest.

Kudos and cake :)
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:iconosa-art-farm:
Osa-Art-Farm Featured By Owner May 9, 2008
After reading everything for the last several weeks about this, and not taken a stand one way or the other, I have just one question.
Many unwatermarked works on the internet are likely to become orphaned status from being posted and reposted many times over thus making the creator hard if not impossible to locate. It could take years for the owner to discover their work will have already been used without their permission. They will have no recourse becasue the user will have 'tried' to find the owner.
That is the only reason I am inclined to oppose the bill.
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:iconcweeks:
cweeks Featured By Owner May 9, 2008
actually, very well done journal, mate.

and picscout is amazing. i don't like their sister company picapp.com but picscout ... use it ... love it.
Reply
:iconflame-dragon:
Flame-dragon Featured By Owner May 9, 2008  Hobbyist Digital Artist
that Orphan Works stuff is gone,no more,kaputs,nada in other works that bill is dead
Reply
:iconrealitysquared:
realitysquared Featured By Owner May 9, 2008  Hobbyist General Artist
I beg to differ, a House subcommittee just discussed the recently reintroduced bill just a couple of days ago.
Reply
:iconinqy:
Inqy Featured By Owner May 9, 2008
This was very clear, brilliantly summarized and well thought out. I appreciate your efforts in keeping the community informed. :aww:
Reply
:iconenigmaticempress:
EnigmaticEmpress Featured By Owner May 9, 2008  Hobbyist General Artist
Thank you so much, that was the most concise and direct way of explaining it. Other sensationalists conveniently always left out the actual wording of the bill, which was what I've been wanting to see. So thank you again.
Reply
:iconirenelangholm:
IreneLangholm Featured By Owner May 9, 2008  Professional Digital Artist
Thanks for adressing the issue as it lays on the 'other continents' as well. ;p
Reply
:iconempty-phantom-stock:
empty-phantom-stock Featured By Owner May 9, 2008  Professional Traditional Artist
This is quite an informative journal and instead of the community (or a few of it's members) running around like chickens' with their heads cut off, they just chill out and take the time to read this.

Excellently displayed and written. Seriously though--Favoriting Journals? Totally needs to happen. This is actually worthy of people seeing whereas most of the journals on the "Today" page are most certainly not.

It's quite aggravating for journals of such importance to not always show up.

:highfive: for all that you do for us non-headless and headless chickens.
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:iconneocron33:
neocron33 Featured By Owner May 9, 2008
got one question will this imply on anyone that isn't U.S?
Reply
:iconrealitysquared:
realitysquared Featured By Owner May 9, 2008  Hobbyist General Artist
The passage of the bill in the United States only affects the laws present in the United States, however if you read the section marked International you'll see that the United States isn't alone in considering the issue.
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:iconneocron33:
neocron33 Featured By Owner May 10, 2008
will it effect sites? such as devianart for example
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:iconrealitysquared:
realitysquared Featured By Owner May 11, 2008  Hobbyist General Artist
The bill proposes to change the way copyright law and licensing work to a small degree so it will affect your work should someone want to use it for something and they cannot locate you in any way to obtain permission.
Reply
:iconneocron33:
neocron33 Featured By Owner May 11, 2008
If they us it for commertial and it is not commercial in nature locially it counts as useing it for personal finantial gain
Reply
:iconpretty-angel:
Pretty-Angel Featured By Owner May 9, 2008  Professional Digital Artist
First of all, thanks again for applying a lot of effort into this issue.

Second, I have some thoughts and questions in regard of deviantART and the qualifying search. Pleas read that and tell me what you think of it.

Let's pretend the bill passes and the definitions of a diligent search will develop. One point of that search are these databases. The main issue about this is in my opinion to match an artwork with its copyright holder (in most cases the artist) when there's no copyright information on the artwork itself.
DeviantART is one of the largest internet art-galleries out there. A lot of images floating around in the internet where uploaded here in the first place and then widely used on flickr, myspace and other websites. Also blatant art theft where thieves directly pick some artworks from dA and use it without permission is not unknown.
Due to this bill the most mentioned concern is that a thief is just taking an artwork, removes all information, does an absolutely convincing search which leads nowhere and finally gets away with using this artwork.

And this is where I think deviantART could render their users a great service. Actually deviantART is a huge database where you can find any kind of artwork. In addition every artwork is providing copyright information and deviantART itself gives one an easy opportunity to contact the artist - either because of an active e-mail address or directly through the note-system. Even if worst comes to worst and one can't find a certain artwork on their own it's easy to ask the community for help and at least one will recognize the wanted artwork for sure.

So here is my suggestion/question: Could it be possible that if the bill passed you (means deviantART) will chime in the debate about a diligent search and make every effort to integrate deviantART as part of the guidelines? Especially when it comes to search an unknown artwork online deviantART should be one of the first spots to search. This would swipe away lots of your user's worries.
I know this is of course purely hypothetical because neither the guidelines for a diligent search nor the details of those databases are written in stone yet. It still would interest me if you (devianART) would or could take steps into the proposed direction?
Reply
:iconrealitysquared:
realitysquared Featured By Owner May 9, 2008  Hobbyist General Artist
I cannot comment on what we may or may not do if the bill passes, that would be irresponsible and I dislike speculation.

I will mention that removing a copyright statement from a work is highly illegal and I would venture that anyone caught doing so is certainly not going to receive any protection at all.
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:iconpretty-angel:
Pretty-Angel Featured By Owner May 10, 2008  Professional Digital Artist
I'm well aware that it would be just speculation. But after all I thought a bit more constructive input would be better than just grumble about the bill and doing nothing. Actually I think it would be pretty easy to "oppose" the bill (in case it would be passed) when an artists makes it easy to get found by a potential user. This includes on one side - what you already said - the awareness of artists about their copyright and protecting their artwork with putting adequate information on it. But I also think that such a huge platform like deviantART could get involved in the process of defining a qualifying search. Even if you can't give an answer now - which is understandable - I hope you keep that idea in mind when the bill perhaps will become law.

Of course I know that it is illegal to remove information. But how can an artist prove that the infringer removed the information? It's not unlikely that picture files lose their copyright information when they were spread in the internet. Signatures get cropped out, watermarks removed, files renamed and finally that artwork ends up on a random flickr account where a big bad company finds it, wants to use it, does a diligent search and ends up with nothing. Voilà - there you have the widely spread doomsday scenario.
Actually I don't think that this will happen but it's hard to find arguments when the bill doesn't provide them. Especially artists who already were ripped off before don't really have faith in common sense and rather see the downside of the bill. As you said somewhere else the guidelines and judgement of these will make or break the bill. Those worried artists fear that the judgement in infringement cases in court will turn against them and let the infringer get away with paying just a small amount of money that doesn't match their actual fee. It's really hard to discuss under these circumstances and calm down the whole fuss.
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:iconfanficbug:
fanficbug Featured By Owner May 9, 2008  Hobbyist Digital Artist
Yes, but consider this hypothetical situation:

Some removes the copyrights and posts it to their site. Say the image gets 1,000 views (entirely possible) before being caught and getting taken down. Out of those 1,000 there might have been 100 or so people who saved that image to their hard drive and either forgot about it or decided to contact the owner of the site thinking they must be the owner. Of course the site goes down and they probably don't get a response from the owner and/or they come across that image some time later, go to the original site and oops, it's gone. So they do a more diligent search on the image and find nothing. They are now legally entitled to use it without fear of repercussions because some @#$% decided that they were going to pass it off as their own even temporarily.

They'll get protection because it wasn't their fault some arse decided to steal it and put it on their website without permission, after having removed identifying information.

Even if you've registered all of your images in the private registeries (which don't exist at the moment; and here's the kicker: if 2013 rolls around and they still don't exist, the law still goes into effect!), they aren't 100% accurate. It's been stated that they're 99% accurate. Currently there are over 55,000,000 works on this site. 1% of 55,000,000 is a LARGE chunk. So even if you've taken the time and money to register them (despite this being against the Berne Convention, of which the US is a signatory: Section (2) of the Berne Convention reads "Copyright must be granted automatically and cannot be conditioned on formalities such as registration or the giving of notice of copyright." emphasis mine), it's still entirely possible that your work will be orphaned.

Correct me if I'm wrong, but I didn't see anything addressing what you do if your work is orphaned; all I saw was "it is not possible that your work will be orphaned." Which is not necessarily true.

This wouldn't be so much of a problem if not for the fact that ANYONE can use orphaned works. Not just museums and non-profit organizations, but anyone: even a major advertising company could use it.

This is against international law.

The Berne Convention requires nations to protect certain "moral rights" (section (4): "Moral rights. Certain defined moral rights are required to be protected under national law"). One of those moral rights is this: "Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation."

If my work is used in a national ad campaign that I don't support, then my moral rights (which the US agreed to support by signing the Berne Convention) have been violated. Hell, if someone uses my work without contacting me, then they've violated my moral rights because I don't support that. I support people working with artists to create things like that if at all possible. I also support respecting artists' wishes, and I can assure you that my wishes for my current artwork is for them not to be used commercially by anyone other than myself, for any reason. Period. There is no "willing seller" in this situation. I will NEVER be willing to sell ANY of my current pieces for ANY price to a Fortune 500 company. I will NEVER want my work to be used in an ad campaign or any other similar project, so there is no "reasonable" price to buy my work. That is why I am so alarmed; it's the fact that my right to refuse my work is essentially stripped.

What do we do if we find ourselves in this situation? . . . Apparently we lie down and take it. Last I checked $2,000 were the max damages you could recover. There's been talk of lowering it to $200, but I haven't seen much definite proof of this, unless you count a strong recommendation of converting to this amount "definite proof."

Not all of us who are alarmed are trying to spin something or be scaremongers. :( It's upsetting that you would imply that, but I can understand your reasons for doing so. Just understand that it upsets those of us who are alarmed, and are trying to deal with this in a logical manner. I can see the need for a law like this, but I have grave misgivings about the way it has been written up right now, so I will oppose it until my concerns are met with better solutions.
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:iconrealitysquared:
realitysquared Featured By Owner May 9, 2008  Hobbyist General Artist
Judging by what you've written I'd wager you've gotten your information from a second or third party source.

For one the search criteria is of utmost concern by the lawmakers at the moment because they intend to craft a system which connects people, not a system which allows users to 'create' orphan works. In fact the intention seems to be to make the ability to use orphan works as reasonably difficult as possible.

I also see you are waving the "private registries" flag. I've actually never seen any mention from any official source at all about "private registries" or "compulsory registration". As far as I can tell that's little more than a scare tactic being used by those opposing the bill.

The 'safe harbor' provisions of the bill are also being aimed at non-profit users and is being crafted to exempt commercial uses.

You also seem to have bought into the line that this bill will strip away your exclusive rights to your own work; again, this is another scare tactic used by the opposition to the bill because it does no such thing.

I suggest that you actually read the bill, or watch the congressional hearings taking place.
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:iconfanficbug:
fanficbug Featured By Owner May 9, 2008  Hobbyist Digital Artist
Excuse me, but I've actually read the bill. Please do not assume that I haven't. I've also listened to the hearings and read supplemental information released in reports by the government, which you have obviously FAILED to do, seeing as you haven't heard of the private registries yet.

Read section 514a1B,D,E: "(B) sources of copyright ownership information reasonably available to users, including private databases. (D) technology tools and expert assistance, including resources for which a charge or subscription fee is imposed, to the extent that the use of such resources is reasonable for, and relevant to, the scope of the intended use; and (E) electronic databases, including databases that are available to the public through the Internet, that allow for searches of copyrighted works and for the copyright owners of works, including through text, sound, and image recognition tools." Further listen to hearings: they have made it exceptionally clear that the government believes that these databases, also called registeries, would be best developed in the private sector because the government can't afford to put them in place for themselves.

From the IPA website: "PicScout is one of the technologies being developed for locating visual art. On March 13, they touted their capabilities to the House IP subcommittee:

“Our technology can match images, or partial information of an image – such as a single face of one person in a crowd, with 99% success... Over the years, we have established relationships with our partners and now track the use of millions of digital files stored in our huge centralized database.”

[link] "

Notice the link to the information housed on [link] that proves all of this. I have read that too.

Another thing from the IPA website:

Q: Where did we get the idea that the Copyright Office wants to impose for-profit registries?
A: That proposal has been there from the beginning. Two examples (with emphasis added), the first from page 106 of the Copyright Office’s 2006 Orphan Works Report:

“[W]e believe that registries are critically important, if not indispensable, to addressing the orphan works problem...It is our view that such registries are better developed in the private sector...” [link] (emphasis mine; PRIVATE REGISTERIES!)

And on January 29 2007, twenty visual arts groups met in Washington D.C. with attorneys from the Copyright Office. The attorneys stated that the Copyright Office would not create these “indispensable” registries because it would be “too expensive.” So I asked the Associate Register for Policy & International Affairs:

Holland: If a user can’t find a registered work at the Copyright Office, hasn’t the Copyright Office facilitated the creation of an orphaned work?
Carson: Copyright owners will have to register their images with private registries.
Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!
- From my notes of the meeting (emphasis mine, again, PRIVATE REGISTERIES)

This exchange suggests that if Copyright Office proposals become law:

- Unregistered work will be considered a potential orphan from the moment you create it.
- In the U.S., copyright will no longer be the exclusive right of the copyright holder.

The 'safe harbor' provisions of the bill are also being aimed at non-profit users and is being crafted to exempt commercial uses.

Where in the bill does it say "no commercial uses"? I haven't seen it and I've combed the bill through. Can you cite a section and give me your reasoning?

And I have already stated that I believe my rights--also known as moral rights--would be stripped by this bill because I should have the right to refuse for my work to be used at all, whether I'm available or unavailable to comment. If I die and there's no one to keep my work safe, then it can and will be orphaned and made available for use by anyone. I NEVER want that to happen to my work. I would literally rather have my work NEVER BE SEEN than for it to EVER be used in a commercial enterprise.

I suggest YOU actually read the bill as well as the related material that's housed on government websites, and YOU do some actual thinking before you go putting people down. I also suggest you apologize for assuming that I've "bought into a line" or made anything less than a completely informed decision.
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:iconrealitysquared:
realitysquared Featured By Owner May 9, 2008  Hobbyist General Artist
In regard to "private databases" I'm assuming that you have never heard of RSiCopyright or the Copyright Clearance Center? They are both existing, private sector companies which maintain databases designed to ease the process of obtaining text permissions. The CCC has been around for about 30 years now.

RSiCopyright is free to use by content creators; the people who have to pay are the users- the people who want to license.

There is also Ingenta, a private database which works as an online intermediary for academic articles.

That's three example of your evil private registries and quite frankly I'm not concerned because they've been around for a long time and they don't seem to be raping anybody as the alarmists claim.

As for information provided back in January of 2007, I think you should get a little more updated. My most recent journal contains a link to a webcast of the actual House Subcommittee discussing the bill. I advise that you take 45 minutes out of your life and watch it so that you can get the latest information relating to what the lawmakers are actually discussing and where their concerns lie.

I will hold my position in believing that you've bought into an alarmist vision of the previous bill.
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:iconfanficbug:
fanficbug Featured By Owner May 10, 2008  Hobbyist Digital Artist
It's great that those registeries are in place, but why is the government not turning to them for the effort? Why is there an entire report on PicScout? Why are they even scoping these places out? RSiCopyright and the CCC are two registeries. That would be enough to put the law into effect. Why spend all that time and money looking into other options? Why not mention those options in the report?

You're also not taking into account the fact that there are no rules for what a 'diligent search' is. Is it searching all of the databases, or just one? If it's searching all of the databases, then what happens if you find conflicting information? Which informtion are you required to act on? What happens if you can't get ahold of the creator (website issues, creator is in the process of moving, phone lines down, etc.)? How long are you required to search? Could a person conceivably abuse the system if there aren't safeguards in place to keep it from happening? (Remember--not every person has the best of motives!)

If someone exercises their exclusive right as granted by the Berne Convention not to register, how do you protect their rights? If you have those rights guaranteed by the Berne Convention, then why aren't they supported by this new piece of legislation? What contingency plans are being put into place for that? How are the lawmakers going to keep these rights from possibly being stripped?

What happens if a for-profit registery opens and people are only required to search one, or worse, they aren't required to search a certain number? Why hasn't this been properly elucidated?

Why isn't there a specific line in the bill itself that prohibits for-profit use?

Until these questions are all properly addressed, I will continue to oppose this bill, and I will continue to believe that I am right in doing so.

I advise that you take 45 minutes out of your life and watch it so that you can get the latest information relating to what the lawmakers are actually discussing and where their concerns lie.

For the last time, I have listened to the hearings and I have read a great deal of supplemental information. If you can't accept that I have and still have doubts that I am anything less than as informed as I can be, then there's no reason for me to talk to you anymore. You said I hadn't read the bill before and I had; I pretty much proved that by quoting the bill and related reports back at you. Whatever happened to "I've actually never seen any mention from any official source at all about ';private registries' or 'compulsory registration'"? Now it's "oh, well there are private registeries but they're not as bad as they seem!" If you knew that before, then why didn't you say so? Why didn't you say "I know there's been a lot of talk about private registries but they're not that bad"? Do you just think me stupid?

You keep saying that I haven't listened to the hearings but if you don't have proof of it and aren't willing to respect me enough to talk to me like I have sense, then I don't see why I should continue the discussion; you are just going to keep throwing "listen to the hearings, read the reports" at me over and over again. I HAVE, and just because I don't agree with you isn't proof that I haven't. Quit treating me like a dissenting opinion means certain ignorance.
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