Little orphan everybody

We’ve all heard of crazy legislation: bridges that go nowhere, museums dedicated to people you never heard of, etc. . .

But one piece of crazy legislation now being pushed through Congress is seriously worrying me.

Both the house and senate versions of the Orphan Works Bill—H.R. 5889 and S.2913—would dismantle copyright as we know it.

As it stands now, both in the U.S. and abroad, one’s original work is considered one’s own. Period. Those who use your work without your permission must pay you if they are caught.

Mind you, catching them is the hard part, but that’s kind of beside the point.

The point is that this proposed legislation would change the law so that those who use your work need not pay you if they can show they believed your work to be “orphaned.”

Traditionally, an “orphaned” work was one whose creator was either dead or unable to be located.

For example, I have an old photo of a lovely woman with a Gibson Girl hairdo. There is no name on the photo, and the only relatives who might have known this lady's name are dead.

This is an orphaned work. Both the subject and the photographer are likely dead, and even if those centenarians are still living somewhere, I can’t find them, because I don’t know their names, or even where the photo was taken.

But under the so-called “Orphan Works Bill” of 2008, any work, regardless of when it was created, can be considered orphaned merely because a potential infringer failed to find it listed in a database.

You realize what this means?

Every work not registered in one of the proposed databases (which would be operated by private companies) would be considered orphaned, even if it’s a photo I took of my child yesterday.

Under current copyright law, an artist who claims his work has been infringed upon must prove that he is the creator of the work. No registry, not even the copyright office, need be involved.

Under the proposed law, even the existence of the work in a registry would not protect an artist from infringement, because there could be any number of databases, and the potential infringer is not required to check all of them. He is only required to make a “reasonable effort.” But he, not the artist, gets to define “reasonable.”

So artists, most of whom have a hard enough time making a living from their art, are expected to spend their time and money entering their work in databases owned not by the Copyright Office, but by private, for-profit companies. The bill’s proponents claim this is letting the private sector solve the orphan works problem. What it’s really doing is creating a private-sector business model from a non-problem.

It actually creates a whole new problem, because it orphans every work not registered. And since the proposed registry—or registries—are not meant to incorporate current Copyright Office records, that means that the minute this bill passes, every creative work everywhere, including this blog, the paintings at my local Starbucks, and the “Tower of Light” sculpture in front of Orlando City Hall, are all “orphans” until they are registered.

In fact, this bill’s requirement that works be registered in databases stands in direct opposition to international copyright law, which prohibits countries from requiring the registering of works. Proponents of the bill say that registration is optional. But the only way for an artist to prove infringement would be to register his work. Brad Holland of the Illustrators' Partnership put it this way: "You'd have to start paying protection money to a bunch of commercial entities."

If anything, given our global economy, we should be trying to standardize laws across countries so as to encourage international commerce. Taking U.S. law so far from that of—well, everybody, frankly—makes us look like a bunch of lawless hicks who care more about stuffing corporate pockets than ensuring artists receive fair compensation for their work.

Lots more information about this matter is available at the Illustrators' Partnership. They also have a link that will help you write your senator or representative.

Mark Simon's interview of Brad Holland, along with an insightful article by Mark, are here.

You can sign a petition here.

We can't afford to just shrug this off and say "this legislation is too crazy to pass." We're talking about the same body that passed the "Energy Independence and Security Act of 2007," which legislates what type of light bulbs we may use.

“No man's life, liberty or property is safe while the legislature is in session.”—New York State Surrogate Court Judge Gideon Tucker, in 1866