On Friday, September 26, 2008, the United States Senate passed their version of the Orphan Works legislation by hotline. A hotline is an informal term for a request to members of the Senate to agree to allow a bill or resolution to be approved by the Senate without debate or amendment (for more information on hotline process read this article by Sen. Tom Colburn).

Currently the House version of The Orphan Works Act of 2008 bill, H.R. 5889, is in the House Judiciary Committee, and while it is not as damaging as the Senate version S.2913, either version of the bill would cause catastrophic harm to creative communities which depend on protections of their intellectual property, provided under current Copyright law.

According to the Orphan Works Act of 2008, an “orphan work” is defined as any copyrighted work whose author is unable to be located by an infringer who claims they have performed a “reasonably diligent search” (however it in no way gives any parameters as to what a reasonably diligent search is. In a departure from existing copyright law and business practice, the U.S. Copyright Office has proposed that Congress grant such infringers freedom to ignore the rights of the author and use the work for any purpose, including commercial usage.

This proposal goes far beyond current concepts of fair use.  It is written so broadly that it will expose new works to infringement, even where the author is alive, in business, and licensing the work.  The bill would substantially limit the copyright holder’s ability to recover financially or protect the work, even if the work was registered with the U.S. Copyright Office prior to infringement.  The bill also has a disproportionate impact on visual artists such as photographers, because it is common for an artist’s, work to be published without credit lines or because credit lines can be removed electronically removed by others in our current, electronic age, where many of these images wind up on the internet.

The Orphan Works Act would force artists to risk their lives’ work to subsidize the start-up ventures of private, profit making registries, using untested image recognition technology and untried business models. These models would inevitably favor the aggregation of images into corporate databases over the licensing of copyrights by the lone artists who create the art.  The most common scenario of orphaning in visual art is the unmarked image. There is only one way to identify the artist belonging to an unmarked image. That would be to match the art against an image-recognition database where the art resides with intact authorship information. These databases would become one-stop shopping centers for infringers to search for royalty-free art. Any images not found in the registries could be considered orphans.  There is no limit to the number of these registries nor the prices they would charge artists for the coerced registration of their work.

In the end, the artist would bear the financial burden of paying for digitizing and depositing the digitized copy with the commercial registries.  Almost all visual artists such as painters, illustrators and photographers are self employed. The number of works created by the average visual artist far exceeds the volume of the most prolific creators of literary, musical and cinematographic works. The cost and time-consumption to individual artists of registering tens of thousands of visual works, at even a low fee, would be prohibitive; therefore countless working artists would find existing works orphaned from the moment they create them.  The Copyright Office has stated explicitly that failure of the artist to meet this burden of registration would result in their work automatically becoming an orphan and subject to legal infringement.

I don’t feel that there are words strong enough to tell you how important it is to personally contact your Representative in the United States House, and ask them to stand against this piece of legislation.  However if you don’t have enough time to call or write them personally please visit http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11980321 or  http://www.petitiononline.com/Stop2913/petition.html or http://www.house.gov/.

If you would like to find out more information please visit http://owoh.org/.