Copyright: Only for the Corporations?

Are we headed towards a two-tier copyright system? One that provides protection for corporations and high-profile artists, but leaves everyone else out in the cold?

Could be. The Congress is considering copyright changes to deal with the “problem” of orphan works (those whose owner cannot be located), allowing use of them if good faith efforts to find the copyright holder have not succeeded.

Paradoxically, the perceived need to weaken copyright protection in this area comes from strengthening it in another. When copyright first came into being, just over three hundred years ago, in England, the length of protection was 14 years, renewable for another 14. After that, all works entered the public domain. Today, copyright can last as long as 95 years (for a corporation).

The real solution to the orphan works problem would be to reduce copyright to (say) 75 years for a corporation and lifetime plus (say) 25 for an individual or 75 years (whichever comes first). That would give plenty of time for sufficient return yet would keep most orphan-works problems from arising.

But that’s not what’s going to happen.

The Orphan Works Amendment is meant to allow museums, libraries, and individuals working with artifacts of the past to use items whose copyright holder cannot be established. Sounds good? Sure. But, as I have said, the best way to do that is to limit the time copyright holds.

But corporations don’t want that. What they don’t mind is infringement on copyright held by individuals—by the “little people”—and so this legislation was born. In effect, it will legalize copyright infringement when the holder cannot be found.

Suppose you found a photograph on the web and wanted to use it—but the provenance wasn’t provided (maybe the usage you found was itself outside of copyright). This amendment would mean that, after a search, you could use the photograph in your work, even if it were copyright protected.

On Monday, May 22, 2006, The Orphan Works Act of 2006 (HR 5439) was introduced in subcommittee. Both parties seem fine with it, and it is expected to move to the full House quickly. In the Senate, the Judiciary Subcommittee on Intellectual Property, chaired by Orrin Hatch, is considering the same legislation. The House bill says, in part:

`(1) CONDITIONS- Notwithstanding sections 502 through 505, in an action brought under this title for infringement of copyright in a work, the remedies for infringement shall be limited under subsection (b) if the infringer sustains the burden of proving, and the court finds, that–
`(A) before the infringing use of the work began, the infringer, a person acting on behalf of the infringer, or any person jointly and severally liable with the infringer for the infringement of the work–
`(i) performed and documented a reasonably diligent search in good faith to locate the owner of the infringed copyright; but
`(ii) was unable to locate the owner; and
`(B) the infringing use of the work provided attribution, in a manner reasonable under the circumstances, to the author and owner of the copyright, if known with a reasonable degree of certainty based on information obtained in performing the reasonably diligent search.

It goes on:

`(B) REQUIREMENTS FOR REASONABLY DILIGENT SEARCH- (i) For purposes of paragraph (1), a search to locate the owner of an infringed copyright in a work–
`(I) is `reasonably diligent’ only if it includes steps that are reasonable under the circumstances to locate that owner in order to obtain permission for the use of the work; and
`(II) is not `reasonably diligent’ solely by reference to the lack of identifying information with respect to the copyright on the copy or phonorecord of the work.

Of course, “reasonably diligent” is going to come to mean “I couldn’t find it on the Internet through Google.”

Here is a bit of the April 6 testimony before the Senate Judiciary Committee by Brad Holland of the Illustrators’ Partnership of America:

[The law] would apply wherever an artist’s work is unmarked, or a mark or signature is obscure. It would be retroactive. It would interfere with commercial markets. It would legalize the infringement of any work of art, regardless of age, country of origin, published or unpublished, where the rights holder cannot be identified or located. It would affect illustrations and photographs disproportionately because images are commonly published without identifying information, signatures may be illegible and information can be removed by others. It would expose to infringement any work that cannot be sourced by “reasonable effort,” and it risks orphaning millions of valuable copyrights that cannot otherwise be distinguished from true orphaned works. For these reasons and many more, we do not believe the statutory language proposed by the Copyright Office is a solution to the orphan works problem. It is a proposal for a radically new copyright law.

The inability to distinguish between abandoned copyrights and those whose owners are simply hard to find is the Catch 22 of the Orphan Works project. Put simply, if a picture is unmarked, it’s impossible to source or date it. Therefore, this proposal would orphan millions of valuable copyrights that cannot otherwise be distinguished from true orphaned works. And this would open the door to cultural theft on an unprecedented scale.

Many users who responded to the Orphan Works Study have asserted that the art under consideration has little or no commercial value. While this may be true of real orphaned work, it is not true of the numberless managed copyrights that would be caught in an orphan works net.

And commercial value isn’t the point, rights to the work is.
Let me give just one little example of what can happen under this bill. Recently, a professor named Joel Beinin saw his photograph on the cover of a David Horowitz pamphlet about terrorism. Beinin objected to the implied link between himself and terrorists. Finding the copyright holder, he determined that permission to use the picture had not been granted. So, he purchased the rights and is now suing Horowitz. If this bill passes, he will no longer be able to do such a thing. He would no longer have any means at all of protecting himself.
Even if you aren’t involved in the arts yourself, write your Representative and your Senators on this.

If this bill passes, we will have copyright for the corporations, and no protection for anyone else. This is extremely important today, when so many of us put our words up on the web, many using pseudonyms that make it difficult for them to be traced.

Do you want you words used by someone else without your permission? It may happen legally if this bill is passed.