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3 Editor's note: This president's address was
deliveredat the School of Visual Arts class of 2008
commencement ceremony, held at Radio City Music Hall in New York on
May 16. The subject is the orphan works legislation—formally, the
Senate's Shawn Bentley Orphan Works Act of 2008 (S. 2913) and the
House's Orphan Works Act of 2008 (H.R. 5889)—currently before
Congress. “Orphan works” are defined as any copyrighted works whose
owners may be difficult or impossible to identify and locate, as
determined by the infringer after a “reasonably diligent search.”
The U.S. Copyright Office has proposed that Congress grant freedom
to ignore the rights of the author and permit use of those works
for any purpose, including commercial usage. (For further
perspective, see Lawrence Lessig's May 20 opinion piece in The New York Times. In
addition, AIGA is actively
involved in this issue.) This is a slightly modified version of
that commencement address.
This Congress—unable or unwilling to bring to an end an
increasingly unpopular war, or to provide relief for those who are
about to lose their homes to foreclosure—has decided to invest its
efforts in changing the copyright law as we know it, sharply
curtailing the rights to your creative output given to you in
earlier legislation. They propose to do this through a bill called
the Shawn Bentley Orphan Works Act of 2008.
A little history:
In 1909, Congress granted copyright protection to creators for
two periods of 28 years only if the work was registered and the
registration was renewed with the copyright office. Since the
Europeans took a more expansive view of author's rights and since
the Berne Convention of 1971 expressly forbids registration as a
pre-condition of copyright protections, Congress revised the law in
1976 to make copyright automatic upon a work's creation and extend
copyright protection to a work for the life of the creator plus
fifty years. Under this regime, every snapshot, doodle, drawing,
painting or design you make is covered by copyright. No one may
reproduce it without your permission. To ensure that it is not
reproduced without your permission, the law provides substantial
penalties of actual damages, court costs and up to $150,000 in
fines for each transgression.
However, according to the U.S. Copyright Office, these
protections have created a troublesome class of work: orphan work.
Orphan work is work which is thought to be covered by copyright,
but where the copyright holder is either difficult to find or
nonexistent. These works are troublesome because they cannot be
infringed with impunity.
The proposed orphan works legislation permits a user to
infringe, without sanction, if a diligent search for the copyright
holder was performed. Diligent search is undefined. Diligence will
be defined on a case-by-case basis by the federal courts. We often
hear criticism of activist judges, both right and left, but this is
a legislative mandate for judicial activism. The statute is silent
as to how one would diligently search for unpublished work
protected by copyright. The statute asks the Copyright Office to
certify an electronic database for “pictorial, graphic and
sculptural works.” In other words, to be safe you would have to
register your work. How, and at what cost, is entirely unclear.
Furthermore, since there are currently no search engines
commercially available which allow you to search for images as
images such a registry is doomed to failure. That foreign works are
unlikely to be included is obvious. Whether such a registry
violates our treaty obligations and is thus illegal will be settled
by subsequent litigation or by the World Trade Organization.
Absent serious penalties for infringement, we all know what will
happen. The unscrupulous will infringe with impunity, as relief
must be sought in the federal courts, where the costs of filing
will exceed any reasonable expectation of recovery. The reasoning
here is particularly benighted. You would be entitled to recover as
damages the fair market value for a license for the infringed work.
The presumption, however, is that since you have not already sold
the work it has no value, so no damages. All of those embarrassing
photos you take of each other using cell phones which end up on
random websites would now be fair game for exploitation by
Although the legislation provides for a “bad faith” exception to
the waiving of penalties, demonstrating bad faith in a legal
context where you have the burden to so prove is almost impossible
without extended and expensive discovery, which is foreclosed in
any event without initial showing of bad faith.
The Copyright Office is convinced that orphaned works are a
serious problem because they received 741 responses to their
request for comment. Although only 24 percent of these responses
addressed what the office itself thought was the orphaned works
problem, they nonetheless conclude, “there is good evidence that
the orphaned works problem is real and warrants attention, and none
of the commenters made any serious argument questioning that
conclusion.” In other words, those who believe there is no problem
are defined as not serious and dismissed out of hand.
As a gauge of seriousness, when the Federal Communications
Commission tried to change ownership rules to allow further media
conglomeration—a serious problem—it received millions of negative
comments. Why, then, would Congress be solving such a minor problem
in such a sweeping way?
In a footnote on page 37 of the report, it was noted that Google
“plans large-scale commercial uses” of the kinds of work that would
normally be found in uncatalogued archives. Furthermore, the Act
provides specific exceptions for nonprofit educational
institutions, libraries and archives. However, the term “archives”
is not qualified by the term “not-for-profit.” Some of the nation's
largest archives of photographic material are in private and/or
corporate hands, and these organizations would be exempt as if they
were operating in the public interest rather than in their own
What Congress should be doing is building a more robust
definition of fair use and public domain. But such robust
definitions of fair use and public domain—which allow for the free
flow of information, the alleged rationale for the Orphan Works
Act—do not serve commercial interests. This is yet another instance
of large corporations being able to override the rights of
If any of this has piqued your interest, you can check on what I
have said by searching the term “Orphan Works Act” and see if I've
gotten it right.
If you think I have, I would urge you to call, email or fax your
congressional delegation and ask them to vote your opinion on this
issue. You can also go to GoPetition.com and sign one of the petitions
stating your position.
After all, it is your work—only you can protect it.
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