Wednesday, May 14, 2008

CAPIC Joins Opposition to Orphan Works Bill

CAPIC is one of the latest groups of organizations that oppose the Orphan Works bill.

The following is a letter that was sent out to all of their members. Most artist's organizations are contacting their members directly about the bill and asking them to send out letters right away.
Thier efforts as those of CAPIC and IPA have done much to help inform the industry on this matter.

This grass roots movement continues to grow as artists are contacting media outlets and informing the general public about the problems of this bill.

Please send this email around to artists friends and family.



Washington is on the verge of voting on a bill called ‘’The ORPHAN BILL’’. Lobbies from Hollywood, Google, Associations of Museums in America, etc promoted this. This bill stipulates that any work where the author is not known could be used and commercialized at will if a “reasonably diligent search.” has failed to find the author. This “reasonably diligent search” would be determined by the user/infringer.

This bill targets all types of work: from professional paintings to family snapshots, from artistic work, to commercial work, personal and wedding photos, published or non-published, from literary works, to music, to visual arts, to film, works that reside or have ever resided on the internet or have been disseminated by any media. The bill may be more damaging to the visual arts and music because this kind of work is more frequently disseminated on the web without due credit or, in some instances, with the artists name removed. This will also have an enormous impact on Indigenous people’s culture since their work is never attributed to any individual.

At the same time this bill will create privately held commercial registries. Private corporations will be able to create registries where all authors will have to register all of their work to protect them from becoming orphaned: ie; for a photographer, every click of the camera, for an illustrator every sketch. Any work not registered could become orphaned and could be used and/or commercialized by any American entity. It will be the private sector that will decide the cost and the means of registering one’s work.

Even if this bill becomes a law in the United-States it will have a very big impact on creators around the world, on creators like you. Obviously this bill when passed into law will not make any difference between the works created by an American citizen and the works created by anyone else in the world. The implication is that EVERY work from everyone in the world would have to be registered in the USA. (Not a bad way to create an economic boom for Google and other American corporations). This create two different worlds with unfair competition: Only Americans will be able to appropriate most of the world work’s, while this practice will stay illegal in the rest of the world. Meanwhile, it may well induce a crash in the price of licensing work everywhere else.

This law violates the international Berne Treaty and the TRIP negotiations (Agreement on Trade Related Aspects of Intellectual Property TRIPs UNESCO.) It may be susceptible to an international lawsuit under international treaties.

Many American creator’s associations are against this bill. They are asking their members to write letters to Washington. They are also asking the same from the international community.

When this law is enacted in the US, the same lobbies will ask other governments to do likewise. If we do not voice our concern now it may be difficult to voice it later with credibility when the same law may be presented in one’s own country.

We are asking you, your members and your associations to take a minute and write to Washington. Do not think it won’t make a difference. It will.

A letter you can use is reproduced bellow. Here is the link to the Illustrators’ Partnership in the US. We agree with their arguments.

This bill could be voted on in a few weeks. We urge you to act in the next few days. We also ask you to forward this document to any group you are in contact with here and internationally.

Andre Cornellier
Copyright Chair
CAPIC National
Canadian Association of Photographers and Illustrators in Communication

PS. This letter also explains the situation very well



I'm writing to urge you to oppose the U.S. Orphan Works Bills, H.R. 5889 and S. 2913, introduced into the House and Senate on April 24, 2008. These bills would amend Chapter 5 of Title 17, United States Code, (Copyright law) by adding “§ 514. Limitation on remedies in cases involving orphan works.” This new limitation on remedies will be imposed on any copyrighted work wherever the infringer can successfully claim an orphan works defense, whether legitimate or adjudicated by courts to be conclusive.

The Orphan Works Act defines an “orphan work” as any copyrighted work whose author any infringer says he is unable to locate by means of a “reasonably diligent search.” The infringer himself will be allowed to determine when he has met this imprecise test. The infringer would be free to ignore the rights of the author and use the work for any purpose, including commercial usage. This is a radical departure from existing international copyright law and conventions, as well as normal business practices.

These bills will have a disproportionate impact on visual artists because pictures are commonly published without credit lines or because credit lines can be removed by others. This is especially true of art published in the Internet Age. And since unmarked pictures cannot be sourced or dated, works by artists like me – who live and work outside the U.S. - will be just as vulnerable to infringement as the work of American artists.

Because visual art is so vulnerable to orphaning, there is only one way to match an unmarked image to its author: by relying on image-recognition databases. The Copyright Office has stated that with the passage of these bills, such registries will be “indispensable,” and they have stipulated that the registries must be created in the private sector and run as commercial, for-profit ventures.

Forcing artists to rely on any form of registry to protect their work is a violation of the Berne Convention for the Protection of Literary and Artistic Works. This law forbids any member country to impose registration on a rights holder as as a condition of protecting his copyright. See Berne. Article 5(2) “The enjoyment and the exercise of these rights shall not be subject to any formality.” But forcing international artists to rely on commercial registries in order to to protect their work from infringement - made legal by a law unique to the United States - is deeply troubling.

There are many reasons why international law forbids coerced registration. Before such registries can be meaningful, all the billions of images currently protected by copyright must first be entered into them with authorship information intact. That means that millions of pictures from around the world, which go unmatched, will be orphaned, even if the artists are alive, working and managing their copyrights. This would even be true of images registered in the databases, but which go unmatched because of computer errors.

There is no limit on the number of these registries or the prices they would charge. The burden of paying for digitization and depositing the digitized copy with the private registry would fall entirely on the artists. Most professional artists have created thousands – or tens of thousands - of drawings, sketches, photos and paintings. This includes both published and unpublished work. The costs of paying to have all these works digitized and registered would be beyond their ability. Yet the Copyright Office has stated explicitly that failure of the artist to meet this nightmarish bureaucratic burden would result in his work being automatically “orphaned” and subject to legal infringement.

Presumably the Copyright Office and Congress expects non U.S. artist like me to register all their past and future art with the new hypothetical U.S. databases, or see my work exposed to commercial infringement under U.S. law.

These bills will create massive uncertainty in the markets where visual art is bought, sold and licensed. It will do this by voiding entirely the exclusive rights of every visual artist whose work any infringer can lay claim to. Reason: I would be powerless to stop the unauthorized uses of my art, even in cases where I would never, or could never, permit those uses. Besides seeing my work used in objectionable or defamatory ways, this will void existing contracts already in force between my clients and me. This is an attack on the principal of art itself, because my exclusive right of copyright is the only tool I have to assert creative control over my work and to protect its value in the marketplace.

The U.S. is a member country of the Agreement on Trade-Related Aspects of Intellectual Property (The TRIPs Agreement). Article 13 of this copyright-related treaty allows certain “limitations and exceptions” to an artist’s exclusive right of copyright. These are codified as a Three-Step Test:
“ Member [countries] shall confine limitations and exceptions to exclusive rights to:

(1) certain special cases

(2) which do not conflict with a normal exploitation of the work
(3) and do not unreasonably prejudice the legitimate interests of the rights holder.

The Orphan Works Bills of 2008 have been written so broadly that their use cannot be confined to true orphaned work. These bills will violate the Berne Copyright Convention and fail the Three-Step Test of TRIPs.

Any Orphan Works solution should precisely define an orphan work as a copyright no longer managed by a rights holder, and be limited to uses in the cultural heritage sector for noncommercial purposes, or use by museums and libraries for preservation and education.




Ambassador Susan C. Schwab
Office of the United States Trade Representative
600 17th Street, N.W.
Washington, DC 20508
United States of America
FAX: 001 (202) 395-4549
(Telephone: (202) 395-3000)


Anonymous said...

Hey, the guild has been saying not to send letters because this will hurt our chances in creating an artists friendly registry.

Do you want Google or Yahoo to be the only ones?

Do you?

Think how lucky we will all be in the future to have a guild run registry instead of one of these corporate run businesses.

Ken Dubrowski said...

You know I have been deleting these messages where some anonymous poster keeps telling me that GAG is going to roll over IPA or that GAG has control of the ICON event or other such nonsense.
Why don't you use your name and tell everyone who you are?

I want this post to stand because if the bill is law I want a record that someone from GAG posted that their intentions were to have a registry.

Why don't you tell us how this will be and who is working with GAG on this, since you have so much knowledge on the subject...

Daniel Vasconcellos said...

Since when do LEADERS appease those whom they disagree with?... True leaders fight this fight!

Late to the Orphan Works fight after being led to their present stance by the efforts of IPA & ASIP and outcry of copyright holders.

If the Guild is that blinded by the promise of a income stream then the thought of a Guild run registry is downright scary.