I need to digress. Is anyone else sharing my concern about the rhetoric surrounding the Orphan Works bills? No secret, I think the bills have serious defects and will do little or no good for the librarians and academics. That is a long story. I want to point out a calm and insightful discussion of the issue by Lawrence Lessig, published in the New York Times, May 20, 2008.
Lessig hits on one of his recurring wishes: A system of making a recorded claim to the copyright after a period of years. That is a longer discussion, too. His discussion of the bill, however, is spot on. I have many other concerns to add to his list.
I am troubled, though, by the rhetoric of some copyright owners who oppose the bill. Take a look at this "down the toilet" cartoon.
Scroll down the list of horribles that are claimed to ensue if the bills become law. Evidently, the list was prepared by a photographer actively licensing his work to clients. I will paste the list here and add a few thoughts in response to each item:
• It would let anyone who can't find me (or who removes my name from my work and says he can't) to infringe my work.
[KC says: How is that different from the current law? And removal of your name for purposes of infringement is likely a violation of the "copyright management information" statute of the DMCA.]
• Since infringements can occur anytime, anywhere in the world,
[KC: And that might not be happening already?]
• My work could be stolen countless times, but I might never find out about it.
[KC: Do you know right now how your work is being infringed???]
• That means that under this bill, I would never again be able to assure a client that my work hasn't been - or won't be - infringed.
[KC: Surely you are not making that assurance today, are you?]
• Therefore I would never again be able to guarantee a client an exclusive right to license any of my work.
[KC: Wow. A guarantee! Would that be reasonable even today? You can give a guarantee that you will not allow uses, but will you guarantee that someone is not taking your work? That is a risk we all assume, and I assumed it when I put my books and more out for readers to find.]
• This means my entire inventory - my life's work - would be devalued by at least 2/3 its potential worth from the moment this bill takes effect.
[KC: Wait. This seems out of the blue. Someone could be stealing my books right now, but am I lowering the price?]
OK, I just ticked off a bunch of people. Honestly, I hope that the angriest out there will be successful. I think the orphan works bills should not become law, so full speed ahead with the opposition! However, I think the arguments from many of the opponents are not at all realistic. And the conclusions that copyrights are down the toilet and will now require registration are simply misinterpretations of the bill.
PS: Under today's law registration of the copyright is not required, but it is a good idea for many reasons. With or without the orphan work bills, registration is not required. With or without the bills, a photographer depending on his work for a livelihood, should probably be registering anyway. Instead of being concerned about registration, I say register, and enjoy the enormous economic benefits.
Comments (3)
Is the current OWA better than nothing? It at least puts a framework in place that can later be amended. Does the $1 proposal in Lessig's op-ed stand a worse chance if passing if OWA passes? Probably. Is the chance of the $1 becoming law enough to kill OWA to improve the chances of the $1 model passing? I'm not so sure.
Posted by Jonathan | May 21, 2008 12:30 PM
Posted on May 21, 2008 12:30
I appreciate the comment about the Orphan Works bill. I have so many troubles with it, that I am not convinced that it is better than nothing. With the complications of amendments, I would not hang my hopes on that prospect. As for Lessig's proposal, I am sympathetic and generally supportive of such an idea, but I do not link it to OWA as he does. Yes, we can make a connection, but I tend to think his proposal is best in a separate conversation.
Posted by Kenny Crews | May 21, 2008 3:31 PM
Posted on May 21, 2008 15:31
http://library.duke.edu/blogs/scholcomm/2008/05/23/reducing-the-number-of-orphan-works-in-the-world/#comment-121301
1. Lloyd Shugart - May 30, 2008
There are many issues with the law as proposed…mainly it just further creates hardship and litigation…….the only reason it won’t overwhelm the Fed Court system is that it will not be financially feasible to pursue protection of the copyrights, because the bill guts any damages and the attorney fees. As it stands now it will promote USE FIRST, and ONLY AK FOR PERMISSION if you get caught.
The only true way to slow the creation of Orphans issue is MANDATORY ATTRIBUTION, since our laws lack any moral rights, and Morals can’t be legislated to any effect. At least with Attribution, and google the living Artist will be able to be found. As Tammy indicates in her letter to congress the current proposal will only create further morass.
Lloyd Shugart
Unintended victim
Tammy,
full copy of Tammy’s letter here http://artsandcraftslaw.blogspot.com/
I read your letter on a Techdirt http://techdirt.com/articles/20080425/124144950.shtml#comments #12 posting, and I must say that of all of my readings on this issue. Your letter is on point of the real effects of this legislation, as it relates to creators, especially the visual artist.
I am the POSTER CHILD for why this is bad for the copyright creators.
I come from an experience that is real. I am in year 3 of a copyright litigation that, my legal bill now exceeds $500,000.00 USD.
US copyright laws currently lack “MORAL RIGHTS”…. before any “ORPHAN WORKS LAW” should be considered the copyright laws need to address at least “Mandatory Attribution” bc I don’t think that moral rights can be enforced by law.
My case involves thousands of images that were marked with my “CMI” embedded into each and every image, with metadata….client removed said data, and then licensed my images to hundreds of third parties who then licensed my images to thousands of additional third parties under their “Affiliate Marketing Programs”
So if you are an artist and are concerned with your artwork then you better be concerned with this proposed legislation, and the impacts it will have on your ability to sustain yourself.
As an aside, although I was the copyright owner, I was the defendant in this lawsuit. I was forced to incur $500,000.00 USD in legal fees to protect my copyrights. As a result I now have thousands of images being used by thousands of people whom are all using my images to make money….they have not paid one red cent for these assets…I can not pursue each and every one of them….and those that I do can claim as a defense that the work is either in public domain or an orphaned work, or that it was an innocent infringement.
How many readers have the kind of USD it take to protect your copyrights, even under the laws as they now stand? If the orphan works law passes as now proposed it will cost more to protect your rights both in real dollars and in your personal time, and emotions.
Propet USA v. Lloyd Shugart WD WA. Federal Court
Lloyd Shugart
Posted by Lloyd Shugart | May 30, 2008 1:45 PM
Posted on May 30, 2008 13:45