by Don Burnett

There was a great presentation at the local meeting of the ACM (SEMAFX- Southeastern Michigan ACM SIGGRAPH) about the new Orphan Works Bill, followed up with an email by Dan Kessler about the two bills that are hitting the house and the senate. Mr. Kessler sent out a written public letter that I am publishing here (originally to the SEMAFX organization). Please read through this thoroughly and check out the links to information at the end of his article.. If you consider how problematic the digital millennium copyright act is already (just my personal opinion there), you might agree with me that we don't need to further mess with the laws that are on the books now..

Please read and contact your congress folks and voice your feelings.. We can't let "special interests" win this one. This one is important to us all..

Mr Kessler's Letter published verbatim from the SEMAFX E-BLAST (thanks also to Randy Rockafellow of SEMAFX for bringing this all together):

"I presented information regarding the Orphan Works bill at the Animation Nation event at Baker. I'm sending this e-blast for those who may want more information or were unable to attend.

The Orphan Works is really two bills introduced to the House and the Senate:

• H.R. 5889, the Ophan Works Act of 2008
• S. 2913, the Orphan Works Act of 2008

In brief, these bills seeks to change the current copyright law and make it virtually impossible for artists and other creators to copyright their work.

What is an orphan work, you may ask? An "orphan" is an original creative work such as a photograph, graphic image, or sculpture, which is still protected by its term of copyright, but whose copyright holder can't be found by a diligent search. One of the problems under the proposed new law is that it doesn't clearly define a diligent search. Artists would need to register their works, at cost, with independent digital databases, but there would be more than one database. If an artist registers with one database but not all, then anyone who searches only one of the unused databases can claim the work orphaned if the artist is not found. An infringer of the work can easily claim a "diligent" search in defense without exhausting all resources including the US Copyright office.

Here are a few other problems with the Orphan Works Bills:

(Taken from owoh.org)

1. The bills will allow an infringer to create-and copyright-a derivative work even if the copyright holder of the original work objects.

2. The bills require that creators digitize all their intellectual property at their own expense and hand it over to privately owned commercial databases in an effort to protect it. Unregistered work will be exposed to infringement by any party in the US for any reason, no matter how commercial or distasteful.

3. The bills "limit" any effective penalties for infringement, which currently help creators protect their copyrights. This means wherever an infringer successfully asserts an orphan works defense, the copyright holder will not be able to recoup court costs and legal fees, nor will they receive statutory damages, court costs and legal fees. While statutory damages are seldom sought by artists they have proven extremely effective at deterring rampant and willful infringement.

4. The bills will effectively strip every citizen of the passive copyright protection we now enjoy because they will nullify the creator's exclusive right of copyright to any form of intellectual property. This right is currently ensured to every citizen upon creation whether or not the work is ever registered with the Copyright Office.

What can artists do to take action against the bills?

• Contact your senators and congressman and ask them to vote NO on the bills.
• Go to http://capwiz.com/illustratorspartnership/home/ and use the form letters to write to congress. Takes less than a minute to add your name.
• Sign the petition at http://www.petitiononline.com/Stop2913/petition.html
• Pass this information to all fellow artists.

I hope you will join in opposing this bill that affects us all as artists,

Sincerely,

Dan Kessler

More information and articles about the Orphan Works Bills:

Orphan Works Opposition Headquarters, www.owoh.org

Articles by Mark Simon at www.AWN.com

Mind Your Business: You Will Lose All The Rights to Your Own Art

Mind Your Business: Don't Lose the Rights to Your Artistic Creations

Mind Your Business: Does Congress Care About Your Creations?

Orphan Works thread at CGTalk.com

Illustrators' Partnership of America, www.illustratorspartnership.org

Graphic Artists Guild, www.gag.org

Brad Holland of the Illustrator's Partnership talks about the Orphan Works Bill, YouTube Clip"