Thanks to artist Colleen Doran we have some more information. I think this sums up both some pros and cons of the bill. The idea of having a bill to deal with Orphan Works is not the issue as much as some of the other items that accompany the bill. This is from the folks at the Graphic Artist Guild who are focused on protecting the work of professional artist. They are hoping to amend the bill to make it more functional or else have it not succeed.
Press release, in its entirety.
Graphic Artists Guild Opposes Senate Orphan Works Bill
NEW YORK â€“ The Graphic Artists Guildâ€™s Board of Directors voted unanimously Friday to oppose the Senateâ€™s passage of the Shawn Bentley Orphan Works Act of 2008 that significantly alters copyright protection rights. The Guild says the bill approved by the Senate Judiciary Committee is incomplete legislation, insufficient protection and indifferent to American workers.
The Guild has been advising members of Congress about the â€œorphan worksâ€ issue since 2006 and participated in discussions with the Copyright Office since 2005. The Guild withheld comment about the Senate bill until work was finalized. That position changed when the completed version was announced only hours before the Senate committee vote last Thursday.
â€œThis is a disappointment,â€ Guild President John P. Schmelzer said, â€œWeâ€™re encouraging creative people from all industries to contact their senators to express their disapproval before the full Senate vote later this year.â€
Orphan works legislation is intended to limit monetary rewards and injunctive relief to stop further infringement of copyrighted works for which the user has been unable to determine the identity of the copyright owner. The Guild and the artist community are concerned that the manner in which the limitations are imposed could produce an incentive for theft in the highly competitive industry that contributes $13 billion a year to the U.S. economy.
Guild leadership was pleased that lawmakers agreed with their recommendation to exclude artwork used on â€œuseful itemsâ€ such as textiles or wallpaper from being subject to the bill, but they say the measure otherwise has a long way to go before sufficiently protecting copyright owners.
The bill is incomplete because three key provisions the Guild sought to protect artists were left out. At the center of the controversy are the â€œbest practices,â€ â€œdatabase certificationâ€ and â€œnotice of useâ€ clauses.
When artwork is being considered for use but the artistâ€™s identity is unknown, the billâ€™s provisions state the user is to attempt to locate the artist by following the best practices outlined by the Register of Copyrights. These practices have not yet been drafted however, and the bill will go into effect prior to their adoption.
The bill also references a database thatâ€™s supposed to make the search for copyright owners possible, but no such database exists for graphic, pictorial or sculptural work. There are no plans for the Copyright Office to create this database, and Congress cannot mandate one be made by a private company. In this case, no matter what best practices the Copyright Register might determine are appropriate for finding a copyright owner, the capacity to do so is not possible at this time.
The Guild proposed a further compromise that the legislation include a publicly accessible â€œnotice of useâ€ filing statement. This provision requires an individual or organization to submit a copy of the visual work believed to be orphaned to the Copyright Office prior to using it.
The Copyright Office would then post the filed information on the Internet so copyright owners could review the website and self-identify themselves as the owner. The virtual â€œlost and foundâ€ department would additionally ensure bad actors could not falsely assert they fulfilled the diligent search requirement of the law prior to using copyrighted work.
The Guild says copyright law was established to protect the creative community that made America the inventive capital of the world. The bill in its current state does too much to protect the interests of possible infringers and reduces protection for creators. The measure is indifferent to artists because it fails to take into consideration the long-term effect to the income potential for a workforce whose yearly median income is only $39,900 according to the Bureau of Labor Statistics. People who use artistic works, such as advertising and promotion managers, make a median average of $73,060 per year.
Guild Administrative Director Patricia McKiernan says the group will remain engaged to resolve these high priority shortcomings of the legislation.
â€œCopyright protection is an important issue for our membership and the economy they serve,â€ McKiernan said. â€œWhen anyoneâ€™s economic rights are reduced, it has enormous implications for the country as a whole. We will remain steadfast for the artistâ€™s interests and this important industry.â€
Write to the US Senate about the Orphan Works Act now!
Urge the Senate to protect creatorsâ€™ rights on S. 2913
â€œThe Shawn Bentley Orphan Works Act of 2008â€³ S. 2913 has passed the Senate Judiciary Committee, and has now moved to the full Senate for a vote. We were unable to achieve significant changes to the bill to better protect the rights of visual creators and rights holders.
Now is the time to write to Senators. The bill may still be amended while under debate of the full Senate. Write to Senators and urge them to amend the bill, and ask them to vote against the bill if it is NOT amended.
Click on this link for a sample letter to use. You may also personalize your own letter. The letter will automatically be emailed to the US Senate. We recommend you also print out the letter and mail it.
Thank you for taking action!