In the non-profit realm, the biggest worry isn’t so much about any actual use but preservation. The problem is that there is a lot of copyrighted material stored in media that will deteriorate and be destroyed before the copyright on the work expires. Film and photos are especially vulnerable to this as many of the oldest film media have relatively short shelf lives but very long copyrights.

This creates both a problem with historical preservation, saving historic images and footage, and cultural one, because by the time these works are in the public domain, they will no longer be useful.

As for commercial use. That is something I don’t personally agree with and I really don’t see how commercial use will be widespread. I don’t see it as necessary for the legislation to solve the problem before us and I don’t see what is gained, especially since the vague terminology will only make it nearly impossible for commercial use to take place.

I’ll leave it to someone wiser than I to explain that portion of the bill.

I hope that helps!

In the non-profit realm, the biggest worry isn’t so much about any actual use but preservation. The problem is that there is a lot of copyrighted material stored in media that will deteriorate and be destroyed before the copyright on the work expires. Film and photos are especially vulnerable to this as many of the oldest film media have relatively short shelf lives but very long copyrights.

This creates both a problem with historical preservation, saving historic images and footage, and cultural one, because by the time these works are in the public domain, they will no longer be useful.

As for commercial use. That is something I don’t personally agree with and I really don’t see how commercial use will be widespread. I don’t see it as necessary for the legislation to solve the problem before us and I don’t see what is gained, especially since the vague terminology will only make it nearly impossible for commercial use to take place.

I’ll leave it to someone wiser than I to explain that portion of the bill.

I hope that helps!

Then I keep reading about how there is an army of documentary filmmakers who can’t make films without this legislation being passed, and knowing some guerilla filmmakers, they haven’t been troubled with the old copyright law. I mean, has Michael Moore been withering on the vine because of Orphan works???

So can people list how an image, whose owner isn’t known, might be used? In the non-profit realm? And what about the commercial realm, which is what I suspect the meat of this issue is really about.

Then I keep reading about how there is an army of documentary filmmakers who can’t make films without this legislation being passed, and knowing some guerilla filmmakers, they haven’t been troubled with the old copyright law. I mean, has Michael Moore been withering on the vine because of Orphan works???

So can people list how an image, whose owner isn’t known, might be used? In the non-profit realm? And what about the commercial realm, which is what I suspect the meat of this issue is really about.

[...a blog that has done its research and presents a clear headed view of these controversial new bills.]

[...a blog that has done its research and presents a clear headed view of these controversial new bills.]

Whenever I read the bill initially, I focused on that area briefly but noticed this line, in your quote above.

“work that recasts, transforms, adapts, or integrates the infringed work with a significant amount of the infringer’s original expression”

The language there is familiar to me and to most who study copyright. It is ripped almost straight from fair use and fair use rulings.

To take advantage of this, the infringer would have to take the orphan work and meld it with a “significant” amount of their own work. How much is significant? If fair us is any indication the answer is quite a great deal.

We’re not talking about simply running a Photoshop filter over the image and calling it a day, this is using a poem in a novel, a picture in a collage, etc. Fair use is a likely argument in many of these cases completely apart from the orphan works situation.

The cases where a someone is allowed to use a work in a manner that is not covered remotely by fair use but is by the orphan works law will be very rare. Furthermore, these are not the commercial disasters that wholesale non-transformative copying are.

This exemption, while worth noting, is very narrow and the language works to make it as such. Would I rather it not be there? Sure. Would I rather the bill go away again? Sure. But the sky isn’t falling here either.

Your rights are far more limited, in a practical sense, by the registration requirements than this. That doesn’t make it right, but there isn’t much need for panic either.

Whenever I read the bill initially, I focused on that area briefly but noticed this line, in your quote above.

“work that recasts, transforms, adapts, or integrates the infringed work with a significant amount of the infringer’s original expression”

The language there is familiar to me and to most who study copyright. It is ripped almost straight from fair use and fair use rulings.

To take advantage of this, the infringer would have to take the orphan work and meld it with a “significant” amount of their own work. How much is significant? If fair us is any indication the answer is quite a great deal.

We’re not talking about simply running a Photoshop filter over the image and calling it a day, this is using a poem in a novel, a picture in a collage, etc. Fair use is a likely argument in many of these cases completely apart from the orphan works situation.

The cases where a someone is allowed to use a work in a manner that is not covered remotely by fair use but is by the orphan works law will be very rare. Furthermore, these are not the commercial disasters that wholesale non-transformative copying are.

This exemption, while worth noting, is very narrow and the language works to make it as such. Would I rather it not be there? Sure. Would I rather the bill go away again? Sure. But the sky isn’t falling here either.

Your rights are far more limited, in a practical sense, by the registration requirements than this. That doesn’t make it right, but there isn’t much need for panic either.

“In a case in which the infringer has prepared or commenced preparation of a work that recasts, transforms, adapts, or integrates the infringed work with a significant amount of the infringer’s original expression, any injunctive relief ordered by the court–

`(i) may not restrain the infringer’s continued preparation or use of that new work;”

The most serious problem is based on the rationale of the proponents of the bill. Today they claim the need for it is inability to contact the author for permission. They claim they can’t find the authors even if they try really hard. For artistic works, frequently stripped of identification, even registered works may be realistically impossible to match up with the author. Thus a commercial user may even honestly make the effort and yet fail to find. And the artist may thus lose rights (see above re derivative work).

“In a case in which the infringer has prepared or commenced preparation of a work that recasts, transforms, adapts, or integrates the infringed work with a significant amount of the infringer’s original expression, any injunctive relief ordered by the court–

`(i) may not restrain the infringer’s continued preparation or use of that new work;”

The most serious problem is based on the rationale of the proponents of the bill. Today they claim the need for it is inability to contact the author for permission. They claim they can’t find the authors even if they try really hard. For artistic works, frequently stripped of identification, even registered works may be realistically impossible to match up with the author. Thus a commercial user may even honestly make the effort and yet fail to find. And the artist may thus lose rights (see above re derivative work).