Orphan Works BILL.

US Senate Pass the Bill – The House now holds the cards…

Hi Guys, I have just received two more posts from the Illustrator’s Partnership of America, one yesterday evening and one this morning, so I figured I would post them up here for you guys to see. It would seem the senate is one step closer to this Bill being passed.

POST ONE:

FROM THE ILLUSTRATORS' PARTNERSHIP

Orphan Works: The Devil's Own Day

Never Too Busy to Pass Special Interest Legislation 9.28.08

As lawmakers struggled Friday to clean up the mess on Wall Street, sponsors of the Orphan Works Act passed more special interest legislation. Their bill would force copyright holders to subsidize giant copyright databases run by giant Internet firms.

Like the companies now needing billion dollar bailouts, these copyright registries, which would theoretically contain the entire copyright wealth of the US - would presumably be "too big to fail." Yet it's our wealth, not theirs, the scheme would risk.

Small business owners didn't ask for this legislation. We don't want it and we don't need it. Our opposition numbers have been growing daily. So Friday, the bill's sponsors reached for the hotline.

What is Hotlining?

Critics of hotlining say, "that lawmakers are essentially signing off on legislation neither they nor their staff have ever read."

"In order for a bill to be hotlined, the Senate Majority Leader and Minority Leader must agree to pass it by unanimous consent, without a roll-call vote. The two leaders then inform Members of this agreement using special hotlines installed in each office and give Members a specified amount of time to object - in some cases as little as 15 minutes. If no objection is registered, the bill is passed."
Roll Call, Sept 17, 2007

In other words, a Senate bill can pass by "unanimous consent" even if some Senators don't know about it.

The Devil's Own Day

Senators Leahy and Hatch hotlined the Orphan Works Act twice last summer. Each time came at the end of a day, at the end of a week, near the end of a legislative session. Each time lawmakers were distracted by other issues and other plans. Each time artists rallied quickly and each time a Senator put a hold on the bill.

Friday the Senators found a new opportunity

With lawmakers struggling to package a 700 billion dollar bailout to avert a worldwide economic meltdown, with the rest of the country focused on Presidential debates, with Washington in chaos and Congressional phone lines jammed, they hotlined an amended bill. On short notice, even the legislative aides we could reach by phone said they didn't have time to read it. And so, while we were rushing to get out a second email blast to artists, the bill passed by "unanimous consent" - in other words, by default.

What better way to pass a bill that was drafted in secret than to pass it while nobody's looking?

Since Friday, artists have been conducting bitter post mortems on their blogs. That's understandable, but it's not time yet.

"When Sherman arrived at Grant's headquarters later that evening, he found the general - broken sword and all - chewing on a soggy cigar in the rain, which had begun soaking the battlefield.

'Well, Grant,' Sherman said to his friend, 'we've had the devil's own day, haven't we?'

'Yes,' replied Grant, 'lick 'em tomorrow, though.'"

The Senate passed their bill Friday, but the House hasn't. There's still time to write, phone and fax your congressional representatives. Tell them not to let the House Judiciary Committee fold their bill and adopt the Senate's.

Tell Congress to protect the private property of small businesses. Lick 'em tomorrow.

Brad Holland and Cynthia Turner, for the Board of the Illustrators' Partnership
Quote from "The Devil's Own Day," by Christopher Allen, January 2000 America's Civil War Magazine

TAKE ACTION: EMAIL CONGRESS TONIGHT

Tell the House Judiciary Committee not to adopt the Senate version.
We've supplied a special letter for this purpose:http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11980321

Please post or forward this message immediately to any interested party.
___________________________________________________________________
For ongoing developments visit the Illustrators' Partnership Orphan Works Blog:
http://ipaorphanworks.blogspot.com/

Over 70 creator organizations are united in opposing this bill in its current form. Illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses.

Read the list: http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00273

The Capwiz site is open to professional creators and any member of the image-making public. Sample letters have been provided. International artists will find a special link, with a sample letter and instructions as to whom to write.

If you received our mail as a forwarded message, and wish to be added to our mailing list, email us at: illustratorspartnership@cnymail.com
Place "Add Name" in the subject line, and provide your name and the email address you want used in the message area.
___________________________________________________________________
POST TWO:

FROM THE ILLUSTRATORS' PARTNERSHIP

Orphan Works: Legislation by Misdirection: 9.29.08.

The architects of the Orphan Works Act have already placed testaments to the bill on their websites:

Senator Leahy: http://leahy.senate.gov/issues/OrphanWorks.html

Senator Hatch: http://tinyurl.com/3jsq5o

They say this "landmark intellectual property bill" will "unlock proverbial attics of copyrighted works" whose owners can't be found. Is that really what all the fuss has been about?

No. If that were the case, the problems could be solved with a modest expansion of Fair Use. It's not proverbial closets we fear seeing unlocked. It's our commercial inventories, which would be exposed to potential infringement.

And while one Senator pointedly writes that the bill "does not dramatically restructure copyright law" (emphasis added), he's right: it doesn't "restructure" it. It merely redefines an orphaned work so broadly that it would let users infringe millions of works as orphans on the premise that some might be.

And why, if the bill is only meant to benefit libraries and museums, have the doors been opened wide for commercial usage?

A Fundamental Change to Copyright Law

For us, the saddest of these postings is on the Copyright Office website itself. http://www.copyright.gov/orphan/

There, Marybeth Peters, the Register of Copyrights explains that this bill is necessary because the U.S., in trying to harmonize our law with international agreements, has created too many orphans.

But that's not the sad part. There are orphans. She's entitled to her belief. And as Register of Copyrights, she's entitled to lobby for a change in the law. But what's sad is that the Register, who we've respected for years as an advocate for creators rights, has chosen to justify this legislative scheme by mischaracterizing the honest objections that creators have raised in good faith, again and again.

Here's how she summarizes the objections of the hundreds of thousands of artists, writers, photographers and musicians who oppose this bill:
"Some critics [she writes] believe that the legislation is unfair because it will deprive copyright owners of injunctive relief, statutory damages, and actual damages. I do not agree.

Well, those are all real issues, but they've never been our focus. We've made our case clearly, simply and often.

Our objection goes to the heart of the matter. Here it is, as one of us expressed it in his opening statement at the Small Business Administration Roundtable, August 8:

"The bill's sponsors say it's merely a small adjustment to copyright law. In fact, its logic reverses copyright law. It presumes that the public is entitled to use your work as a primary right and that it's your obligation to make your work available. If this bill passes, in the United States, copyright will no longer be the exclusive right of the copyright holder."
From "Orphan Works: A Hobson's Choice for Artists," by Brad Holland August 8 2008

And in case the point needed elaboration:

"This exclusive right matters to artists for three reasons:

1.) Creative control: No one can change your work without your permission
2.) Ownership: No one can use your work without your permission
3.) Value: In the marketplace, your ability to sell exclusive rights to a client triples the value of your work
http://ipaorphanworks.blogspot.com/2008/08/orphan-works-hobsons-choice-for-artists.html

The Orphan Works Act passed by the Senate Friday explicitly voids that exclusive right as expressed in Article 9 of the Berne Copyright Convention:

(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.

(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.
http://www.law.cornell.edu/treaties/berne/9.html

There can be no responsible argument that the Orphan Works Act is consistent with Article 9 of Berne. None.

Simple reason: the Orphan Works Act does not limit exemptions to an author's exclusive right to "certain special cases." Case closed.

There are many other reasons to object to this terrible bill: it violates the entirety of Article 9. But we only need to make this single point to show that it's a radically new copyright law.

Hiding the Rabbit

The key to the Congressional magic act has been to hide an anti-copyright rabbit in an Orphan Works hat while misdirecting attention to a tedious debate about "reasonably diligent searches," injunctive relief and statutory damages.

Meanwhile the secret of the trick has been simple: redefine an orphaned work as "a work by an unlocatable author."

This new definition would permit any person to infringe any work by any artist at any time for any reason - no matter how commercial - so long as the infringer found the author sufficiently hard to find.

Since everybody can be hard for somebody to find, this voids a rights holder's exclusive right to his own property. It defines the public's right to use private property as a default position, available to anyone whenever the property owner fails to make himself sufficiently available.

This is a new definition of copyright law

The headline on the Copyright Office website should read:

In the United States, Copyright Will No Longer Be the Exclusive Right of the Copyright Holder.

This headline would at least have the virtue of candor.

On March 13, the Register of Copyrights testified before the House IP Subcommittee. On page 1 of her testimony she said:

"Every country has orphan works and I believe that, sooner or later, every country will be motivated to consider a solution. The solution proposed by the Copyright Office is a workable one and will be of interest to other countries."
http://www.copyright.gov/docs/regstat031308.html

You can bet it will be of interest to other countries, because the copyrights of other countries can now be orphans in the U.S. too. The Copyright Office and the Senate have thrown down a gauntlet to the world.

Write your congressional representatives today and tell them not to follow.

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

TAKE ACTION: EMAIL CONGRESS NOW
Tell the House Judiciary Committee not to adopt the Senate version.

We've supplied a special letter for this purpose:
http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11980321

Please post or forward this message immediately to any interested party.
___________________________________________________________________
For ongoing developments, go to the Illustrators' Partnership Orphan Works Blog: http://ipaorphanworks.blogspot.com/

Over 70 organizations oppose this bill, representing over half a million creators. Illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses.

The Capwiz site is open to professional creators and any member of the image-making public. International artists will find a special link, with a sample letter and instructions as to whom to write.

If you received our mail as a forwarded message, and wish to be added to our mailing list, email us at: illustratorspartnership@cnymail.com
Place "Add Name" in the subject line, and provide your name and the email address you want used in the message area.

Please post or forward this email to any interested party.
___________________________________________________________________

Okay folks there you have it. It looks as though this Bill could see the light of day as law. If you are able to react to this please do so as early as possible. As I said on Saturday, lets hope cynicism loses out here and the guys in power do the “right” thing and throw this Bill out of the window on moral grounds.

If I hear more I’ll let you guys know.

Until next time have fun!

Tim Perkins…
September 29th 2008