In my most recent post about the proposed orphan works bill, I promised that I would draft a letter to send to representatives in Congress about the legislation. The goal being to craft a letter that opposed the bill on rational grounds, rather than adopting the apocalyptic views many have taken of the bill.
I’ve attached a draft of this letter below and I highly encourage anyone who is considering writing their local representatives about this issue to look through it. You are free to copy, resend and otherwise pass on this letter. You may also download the RTF file below and distribute it freely.
Also, feel free to make any modifications and/or adjustments you deem fit. Also, if you have any suggestions on how to improve the letter, I will happily entertain them. I consider this very much a living project.
Dear REPRESENTATIVE NAME
As an artist that depends upon copyright law for his/her livelihood and a member of your constituency, I wanted to draw your attention to recent legislation that has been proposed in both the House and Senate that could drastically impact my rights as an artist and my ability to protect my works.
The orphan works legislation, bills S. 2913 and H.R. 5889, propose changes in the way copyrighted works are handled in the event that the copyright holder can not be located.
Though the two bills have some notable differences, they are similar in that they allow the copying and use of an unidentified work, known as an orphan, as long as the would-be infringer performs a search for the copyright holder and is unable to locate him or her.
The bill is designed to address an issue where many works are lost simply because it is illegal to preserve them. Copyright protection has been extended to a point where it often outlasts the medium the work is in, meaning that the work is destroyed before it is legal to copy and preserve it.
However, the current orphan works legislation not only fails to adequately address this very real issue, but it also fails to provide adequate protections to currently working artists who depend upon reasonable copyright protection to make their living.
Consider the following issues with the current proposals:
- Universities and other public institutions will be unlikely to exploit orphan works for preservation due to the legally ambiguous definition of a “qualifying search” that could open them up to lawsuits.
- Content creators, especially visual artists whose work routinely is used without proper attribution, will be forced to register their works with various databases, likely at great expense, to avoid having their work becoming an orphan. This is despite the fact that such formalities are not allowed under both the Berne Convention, of which the United States is a signatory, and the Copyright Act of 1978.
- Artists may find their work being used for commercial purposes, including uses they are ethically and morally opposed to, simply because they could not be identified easily as the owner.
- Copyright holders may find that their existing registrations with the Copyright Office are meaningless as both their remedies under the orphan works act would be limited and the USCO registration system does not provide a means for third parties to locate copyright holders of visual works.
- The bill introduces still more confusion and ambiguity into copyright law, already one of the most misunderstood and confusing areas of law in the United States.
However, it is not just artists that are opposed to the new legislations, many who openly seek copyright reform have qualms with the legislation as well.
For example, Professor Lawrence Lessig, who has campaigned heavily to save orphan works and even petitioned the Supreme Court to have the Sony Bono Copyright Term Extension Act of 1998 overturned due to this very problem, is against the legislation as well.
On his site, Professor Lessig derided the 2006 orphan works bill, which is very similar to the current ones, saying that it “both goes too far, and not far enough.”
Lessig proposed many changes to the bill to make it both more practical and better protect current artists. However, none of his proposed changes were considered nor do they, or any changes similar to them, appear in the current bills.
Simply put, the current orphan works bills not only fail to solve the very real and very serious problem of orphaned works, but they put hard working artists, such as myself, at risk of losing rights to their work.
With that in mind, I am writing to ask that you vote against this bill and that you do whatever is within your power to ensure that it does not pass. Both current artists and the orphan works this bill seeks to protect are going to depend upon finding an effective and fair solution to this problem.
However, that can not happen should this bill pass.
Thank you very much for your time and consideration.