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Orphen Works Legislation?
Apr. 13th, 2008 11:40 amOriginally, I posted that entry because Animation World Network is an extremely reliable website, I use it all the time for news about animation, companies, and potential jobs. If a legislation like this DID happen, it does make creating your own works difficult, but a friend currently going through law school read throught he article and told me that it can't happen.
At first I was doubtful considering this article WAS on AWN and because of my own personal experience... but she does argue a good point. Apparently, an attempt at creating an Orphen Works legislation would be illegal under TRiPs, WTO intellectual property treaty between major countries.
After more research, I found that the Illustrators' Partnership has stated that, "Many artists have contacted us, asking if it’s time to write Congress about the new Orphan Works bill. No, Congress hasn’t released an actual bill yet and lawmakers tend to ignore letters when there is no bill."
However, the Board of the Illustrator's Partnership also states: "But when we do ask you to act, it will have to be quickly. We expect a bill to be released after the Easter recess. Sources say it will be introduced in the House and Senate simultaneously, and fast-tracked for a vote in the House by mid-May. Advocates hope for swift passage before the summer recess.
The decision to introduce such a radical bill so late in the session is ominous. Because of fall elections, this will be a short Congressional year. Any bill not passed by the end of Congress will have to re-introduced in the next Congress. That means the bill’s sponsors must know they have their ducks lined up.
Of course, we can’t judge a new bill until we’ve seen it, but it appears that the new one will closely resemble the old one. So while we don’t recommend sending letters yet, it’s not too soon to start drafting them. Over the next few weeks, we’ll tell you more about the changed Orphan Works landscape. Then stand by."
So far, I've only found this statement of proposal by the register of copyrights, Marybeth Peters. It's a REALLY REALLY long article, but it's easy enough to understand and her Proposed Solution doesn't harm artists in any way, and mostly discusses work that seems to be have been orphened for a long time, such as old photographs and paintings in which the owner of the copyright cannot be found: "We rejected all of these proposals in part for the same reasons: we did not wish to unduly prejudice the legitimate rights of a copyright owner by depriving him of the ability to assert infringement or hinder his ability to collect an award that reflects the true value of his work. We also rejected proposals that would have limited the benefit of orphan works legislation to certain categories of works or uses. Both commercial and noncommercial users made compelling cases; moreover, these parties often collaborate on projects and both need the benefit of the law. Likewise, we concluded that there were significant problems with respect to all categories of works: published, unpublished, foreign and U.S. works.
Instead, we recommended a framework whereby a legitimate orphan works owner who resurfaces may bring an action for “reasonable compensation” against a qualifying user. A user does not qualify for the benefits of orphan works legislation unless he first conducts a good faith, reasonably diligent (but unsuccessful) search for the copyright owner. As defined in our Report, reasonable compensation should be the amount “a reasonable willing buyer and reasonable willing seller in the positions of the owner and user would have agreed to at the time the use commenced.”2 Such a recovery is fair because it approximates the true market value of the work. It allows a copyright owner to present evidence related to the market value of his work and, at the same time, allows the copyright user to more precisely gauge his exposure to liability. Statutory damages would not apply to use of an orphan work. (The Office agrees with copyright owners who have since suggested that an award of attorney's fees might make sense in certain instances where an orphan work user acts in bad faith.)"
So there hasn't been a 'sound of drums' quite yet because there doesn't seem to be anything to worry about and apparently there are enough checks and balances to make sure that artists fully retain the copyright of their own works.
At first I was doubtful considering this article WAS on AWN and because of my own personal experience... but she does argue a good point. Apparently, an attempt at creating an Orphen Works legislation would be illegal under TRiPs, WTO intellectual property treaty between major countries.
After more research, I found that the Illustrators' Partnership has stated that, "Many artists have contacted us, asking if it’s time to write Congress about the new Orphan Works bill. No, Congress hasn’t released an actual bill yet and lawmakers tend to ignore letters when there is no bill."
However, the Board of the Illustrator's Partnership also states: "But when we do ask you to act, it will have to be quickly. We expect a bill to be released after the Easter recess. Sources say it will be introduced in the House and Senate simultaneously, and fast-tracked for a vote in the House by mid-May. Advocates hope for swift passage before the summer recess.
The decision to introduce such a radical bill so late in the session is ominous. Because of fall elections, this will be a short Congressional year. Any bill not passed by the end of Congress will have to re-introduced in the next Congress. That means the bill’s sponsors must know they have their ducks lined up.
Of course, we can’t judge a new bill until we’ve seen it, but it appears that the new one will closely resemble the old one. So while we don’t recommend sending letters yet, it’s not too soon to start drafting them. Over the next few weeks, we’ll tell you more about the changed Orphan Works landscape. Then stand by."
So far, I've only found this statement of proposal by the register of copyrights, Marybeth Peters. It's a REALLY REALLY long article, but it's easy enough to understand and her Proposed Solution doesn't harm artists in any way, and mostly discusses work that seems to be have been orphened for a long time, such as old photographs and paintings in which the owner of the copyright cannot be found: "We rejected all of these proposals in part for the same reasons: we did not wish to unduly prejudice the legitimate rights of a copyright owner by depriving him of the ability to assert infringement or hinder his ability to collect an award that reflects the true value of his work. We also rejected proposals that would have limited the benefit of orphan works legislation to certain categories of works or uses. Both commercial and noncommercial users made compelling cases; moreover, these parties often collaborate on projects and both need the benefit of the law. Likewise, we concluded that there were significant problems with respect to all categories of works: published, unpublished, foreign and U.S. works.
Instead, we recommended a framework whereby a legitimate orphan works owner who resurfaces may bring an action for “reasonable compensation” against a qualifying user. A user does not qualify for the benefits of orphan works legislation unless he first conducts a good faith, reasonably diligent (but unsuccessful) search for the copyright owner. As defined in our Report, reasonable compensation should be the amount “a reasonable willing buyer and reasonable willing seller in the positions of the owner and user would have agreed to at the time the use commenced.”2 Such a recovery is fair because it approximates the true market value of the work. It allows a copyright owner to present evidence related to the market value of his work and, at the same time, allows the copyright user to more precisely gauge his exposure to liability. Statutory damages would not apply to use of an orphan work. (The Office agrees with copyright owners who have since suggested that an award of attorney's fees might make sense in certain instances where an orphan work user acts in bad faith.)"
So there hasn't been a 'sound of drums' quite yet because there doesn't seem to be anything to worry about and apparently there are enough checks and balances to make sure that artists fully retain the copyright of their own works.
