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Brad Holland
The Return of Orphan Works: "The Next Great Copyright Act"
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For more than a year Congress has been holding hearings for the drafting of a brand new US Copyright Act. At its heart is the return of Orphan Works.

Twice, Orphan Works Acts have failed to pass Congress because of strong opposition from visual artists, spearheaded by the Illustrators Partnership.

Because of this, the Copyright Office has now issued a special call for letters regarding the role of visual art in the coming legislation.


Therefore we're asking all artists concerned with retaining the rights to their work to join us in writing. I'm especially asking everyone who posts here on Drawger to write, and if you would, to post your letters here as well.
 
Deadline: July 23, 2015

You can submit letters to the Copyright Office online here:

Read the Copyright Office Notice of Inquiry here.
Read the Copyright Office's 2015 Report on Orphan Works and Mass Digitization here.


Here are the basic facts:

"The Next Great Copyright Act" would replace all existing copyright law.

It would void our Constitutional right to the exclusive control of our work.

It would "privilege" the public's right to use our work.

It would "pressure" you to register your life's work with commercial registries.

It would "orphan" unregistered work.

It would make orphaned work available for commercial infringement by "good faith" infringers.

It would allow others to alter your work and copyright those "derivative works" in their own names.

It would affect all visual art: drawings, paintings, sketches, photos, etc.; past, present and future; published and unpublished; domestic and foreign.

 
Background: The demand for copyright "reform" has come from large Internet firms and legal scholars allied with them. Their business models involve supplying the public with access to other people's copyrighted work. Their problem has been how to do this legally and without paying artists.

The "reforms" they've proposed would allow them to stock their databases with our pictures. This would happen either by forcing us to hand over our images as registered works, or by harvesting unregistered works as orphans and copyrighting them as "derivative works."

The Copyright Office acknowledges that this will cause special problems for visual artists but concludes that we should still be subject to orphan works law.

"The Next Great Copyright Act" would go further than previous Orphan Works Acts. The proposals under consideration include:

1.) The Mass Digitization of our intellectual property by corporate interests.
2.) Extended Collective Licensing, a form of socialized licensing that would replace voluntary business agreements between artists and their clients.
3.) A Copyright Small Claims Court to handle the flood of lawsuits expected to result from orphan works infringements.

In your letter to the Copyright OffIce:

 
It's important that lawmakers be told that our copyrights are our source of income because lobbyists and corporation lawyers have "testified" that once our work has been published it has virtually no further commercial value and should therefore be available for use by the public.
 
So when writing, please remember:
– It's important that you make your letter personal and truthful.
– Keep it professional and respectful.
– Explain that you're an artist and have been one for x number of years.
– Briefly list your educational background, publications, awards etc.
– Indicate the field(s) you work in.
– Explain clearly and forcefully that for you, copyright law is not an abstract legal issue, but the basis on which your business rests.
– Our copyrights are the products we license.
– This means that infringing our work is no different than stealing our money.
– It's important to our businesses that we remain able to determine voluntarily how and by whom our work is used.
– Stress that your work does NOT lose its value upon publication.
– Instead, everything you create becomes part of your business inventory.
– In the digital era, inventory is more valuable to artists than ever before.
If you are NOT a professional artist:
– Define your specific interest in copyright, and give a few relevant details.
– You might want to stress that it's important to you that you determine how and by whom your work is used.
–You might wish to state that even if you are a hobbyist, you would not welcome someone else monetizing your work for their own profit without your knowledge or consent.

Because this is a complicated issue, we'll follow up next week with an expanded analysis and some thoughts of our own.

Cynthia Turner and I have filed multiple papers with the Copyright Office regarding this issue.You can download them from the Copyright Office website:

Remedies for Small Copyright Claims

January 17, 2012

Orphan Works and Mass Digitization

Initial comments, February 3, 2013

Orphan Works and Mass Digitization

Reply Comments, March 6, 2013

Orphan Works and Mass Digitization

Additional Comments, March 21, 2014

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