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Orphan Works Redux

By Jonathan Bailey • Apr 21st, 2008 • Category: Articles, Legal Issues, Orphan Works

Copyright Clearance CenterI am receiving numerous reports that the controversial orphan works legislation is set to be re-introduced to Congress sometime in the next few days. A backlash against the proposed legislation has already begun and others are lining up to protest the bill after it is introduced.

There is very little information at this time as the bill has not yet been introduced. However, early reports are that it looks very similar to the bill that was introduced, and defeated, in 2006. Back then, it was an uproar by artists, photographers and illustrators that resulted in the bill’s failure.

I am going to be following this bill very closely as it is introduced and makes its way through the legislative process. In the meantime, please feel free to read my previous works on the matter, which were written regarding the 2006 bill, below:

Punditry: The Orphan Works Proposal
Is Your Work an Orphan? (Part One)
Is Your Work an Orphan? (Part Two)



Jonathan Bailey is The Webmaster and author of Plagiarism Today, which he founded in 2005 as a way to help Webmasters going through content theft problems get accurate information and stay up to date on the rapidly-changing field. He is also a consultant to Webmasters and companies to help them devise practical content protection strategies and develop good copyright policies.
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  • I am conflicted on this one. A finder(s) of an orphaned work may have no idea how old a work is. How does one know when the copyright expires if the author cannot be found? We deal with this in our society all the time. Leave your bank account dormant long enough, and money will be deducted. Drop off the map long enough, and you can be declared legally dead.

    On the other hand, copyright law already has specifications for anonymous works. The law mandates deposit, too, although I have never heard of a case where mandatory deposit has been enforced. So why should it be incumbent on the author to remain in reasonable contact with society? Also, what constitutes "contact"? The author of a popular work may be slammed with requests for permission. What if the author does not respond to emails and voicemails in a "reasonable" amount of time? Would the terms of service of a Web site constitute contact?
  • Michael: The mandatory deposit requirements have nothing to do with copyright itself these days. You have to perform the deposit even if you don't plan on registering your right or claiming copyright. It's an act that is required upon publication. However, most orphan works were not published and works on the Web are not, typically, considered to be published.

    Regarding the issue of contacting the rightsholder, if the legislation mirrors the earlier one and USCO recommendations, if you discover who the rightsholder is, the work is no longer an orphan, regardless of if they reply or not. There may be situations where if a letter or email bounces back it could still be an orphan, but no response does not equal a declaration of an orphan.

    I agree that there are a lot of issues here and the more I think about the law the less I like it. I don't think the doomsday scenarios are accurate, but there are some legitimate issues. I'm going to wait and see what the new law says...
  • It is time to take action on the Orphan Works Bill.

    I am a professional member of the Graphic Artists' Guild and am working with the Advocacy Committee to help create awareness and gain support for action regarding the new Orphan Works Bill.

    The Graphic Artists Guild is our number one advocate on Capitol Hill and you should know that the committee has been working closely with the sponsors for the bill to find acceptable terms for visual artists. The Orphaned Works Bill pertains to ALL copyrights, and visual artists are the only group of authors who are opposing the bill - with very good reason - the methods for submitting, searching and protecting copyrights outlined in the 2006 Bill simply do not work for visual art. In the pdf document below you can read several of the propositions the GAG has made to protect our copyrights.

    http://www.rollingchrome.com/alert/GAGnews01.pdf

    Two versions of "The Orphan Works Act of 2008" are about to be released. Rep. Howard Berman is sponsoring the House Judiciary Committee draft, while Senator Patrick Leahy is sponsoring the Senate Judiciary Committee draft.

    I will post both drafts immediately upon official release. The Advocacy Committee of the Graphics Artists Guild is discussing these drafts, and will provide commentary and recommendations for action as soon as possible.

    THERE IS A WAY TO MAKE A DIFFERENCE!!
    The GAG has created a Legislation Action Center on its site that is available TO EVERYONE. Through this interactive portal, you will be able to take action when needed to ensure that our rights and visual artists are protected.

    If you want to be a part of the solution, and not just a commentator, I urge you to take action.

    Legislative Action Center:
    http://capwiz.com/gag/home/
  • Diana: Thank you for the information!
  • Anonymous
    A pdf of the bills are available at www.orphanworks.net. They are S2913 and HR 5889 and were apparently introduced today.
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