Orphan Work: New Talking Points Making the Rounds

If you have not yet seen it, several sites from those who support the Orphan Works bill are now circulating their new "Talking Points" on blogs. In these talking points they claim that these digital databases are not registries at all and the bill does not include the term.

But later in describing the bill they also use the term "visual registries". So if it is good enough for them it's good enough for me.

They're registries and they are going to be commercial registries.


The Illustrator's Partnership of America has sent this email below, replying to these new talking points. I'm sure there will be a whole new batch of new talking points coming out because as my friend likes to say, " We must be over the target, because the flack is getting louder."

Thanks,
Ken




FROM THE ILLUSTRATOR'S PARTNERSHIP OF AMERICA

“Neither the House nor the Senate drafts of the bill contain the word “registries,” [they write] but rather they require users to search non-governmental databases of copyrighted works. The purpose of any database is not meant to take the place of copyright registration, but to have a way to search for visual images. Any participation in such a database would be voluntary.”


But this doesn’t mean what it appears to say. Take it point by point:

Talking Point #1: “Neither the House nor the Senate drafts of the bill contain the word ‘registries.’ ”
Response: Correct. They contain the word “databases,” a synonym:

Registry: register: an official written record of names or events or transactions
http://wordnet.princeton.edu/perl/webwn

Database: A database is a structured collection of records or data
http://en.wikipedia.org/wiki/Database


Q: Why a synonym?
A: Because international copyright law forbids member countries to impose registries as a condition of protecting copyrights: Berne/Article 5(2) ”The enjoyment and the exercise of these rights shall not be subject to any formality.” http://www.law.cornell.edu/treaties/berne/5.html

In other words, if they used the word “registries” in the bills, it would be a red flag to other countries that the US is flirting with non-compliance with international treaties.


Talking Point #2: “...rather they [the bills] require users to search non-governmental databases of copyrighted works.”
Response: Non-governmental databases” means databases maintained in the private sector.
For users to find your work in these commercial databases, your work would first have to be in the database.
Work not in the database would be orphaned.

Talking Point #3: “Any participation in such a database would be voluntary.”
Response: Congress cannot pass a bill making registration mandatory because that would violate Berne/Article 5(2).
And that would state explicitly to other countries that the US no longer intends to honor its international agreements.
There are red flags all over these talking points.

Summing up: The Orphan Work bills would mandate the creation of registries by commercial interests.
You would not be legally forced to place your work with these for-profit registries.
But failure to do so would orphan your work.

The deceptive talking points accompanying this bill are another red flag.

— Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership

Take Action/ Write Congress http://capwiz.com/illustratorspartnership/home/

Over 37,000 messages have been sent from the site in the last 48 hours. Please spread the word.