Monday, July 14, 2008

Copyright Orphan Law

I've heard that the House plans to markup the Orphan Works bill this week, and then send it to the floor for a vote. Markup is the process where congressional committees debate, amend, and rewrite proposed legislation. In this case, we are hoping that they will debate the bill, not just pass it through because their colleagues ask them to. Amendments to H.R. 5889 will most likely be offered by House Judiciary Committee Members- some will improve the bill, some will not. The Committee will then vote to accept or reject the changes. After markup, the bill could be reported out of the House Committee, and go to the floor for a vote-which is what we are trying to prevent.

It is critical that we reach out to members of the House Judiciary Committee today or tomorrow and ask them to consider how this legislation will affect us before they send it to the floor for a vote.

1. The bill will basically allow anyone to use a design for any purpose- without the copyright holder's permission - after performing a vaguely defined 'reasonable search'. This is a problem because looking for the copyright holder on an unidentified image, no matter how reasonably or diligently the search is handled, is like looking for a needle in a haystack.

2. The bill will allow an infringer to create-and copyright-a derivative work.

3. The bill requires the implementation of a visual arts database that does not currently exist. While it does not require artists to register their work on this database, any work that would not be included on the database could easily be 'orphaned'. This is a catch 22; the legislation only makes sense if there is a reliable way (such as a visual arts database) to trace a piece of art-without that ability the effect will be to CREATE millions of orphaned works-but there currently is NO reliable way to trace a piece of art.

4. The biggest problem is that the legislation is scheduled to become effective whether or not the required databases ever come into existence, as it is scheduled to take effect on the EARLIER of: January 1, 2013, or when the copyright office certifies the existence of at least two independent, searchable databases. In order to be meaningful, the effective date should-and MUST- be tied to the implantation of searchable databases.

If you can't get the staffer on the phone, leave a message saying that "as a constituent I am opposed to this bill, and would like to discuss my concerns with you BEFORE the markup meeting", and then give your phone number.

Hon. Howard Coble (R)
202-225-3065 ask to speak to the person that is advising the congressman on the Orphan Works legislation (HR 5889)
Hon. Melvin Watt (D)

For more information on this legislation visit

Those of you who know me well know that I have had several copyright infringement lawsuits where people have taken my work and reproduced it and sold it as their own. This devalues the work and is stealing in plain language. Even worse we have friends that have had their 3d designs purchased by big companies, the company sent the piece to china and had it reproduced. The artist got nothing other than the cost of the one piece the big company had purchased. The fallout is that the artists work is in a gallery, then customers come in a say "I saw something just like this in _____" for half as much. Even though the piece isn't just like my friends from far away you might see the resemblance, my friend will never be able to sell her pieces like it again. Her design was stolen and so was the way she makes her living.

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