Wednesday, July 30, 2008

Pending Federal Law Threatens All Copyright Owners

The Shawn Bentley Orphan Works Act of 2008 (S. 2913) "Orphan Works Act of 2008" (H.R. 5889) allows anyone to use a copyrighted work without first obtaining permission. The user can later claim that a diligent search was conducted but the owner could not be found in any later action for infringement. This new legislation will apply to all copyright owners whether or not the work was previously registered with the Copyright Office. The legislation threatens the rights of artists, photographers, composers, film makers, publishers, and visual artists says the Hodgson Law Group. The Copyright Office not only endorses this legislation, but also advocates further changes that go beyond the proposed statute in reducing copyright protection. The Registrar of Copyrights seeks to eliminate a proposal in the House Version requiring users to file a Statement of Use in the Copyright Office disclosing unauthorized use, in what has been labeled the "Dark Archive." Elimination of the filing requirement would leave copyright owners with no means to locate unauthorized users claiming the benefit of the "orphan works" legislation.

Senator Patrick Leahy (D-VT) and Congressman Howard Berman (D-CA) have introduced two similar bills in the House and Senate that threaten to dismantle 100 years of copyright protection, rights guaranteed to authors the U.S. Constitution. The Shawn Bentley Orphan Works Act of 2008 (S. 2913) and the Orphan Works Act of 2008 (H.R. 5889) allows anyone to use a copyrighted work without first obtaining permission. The user can later claim as a defense to copyright infringement that a diligent search was conducted, but the owner could not be found. As presently drafted, the infringer is virtually insulated from liability absent court proceedings says the Hodgson Law Group. The copyright owner can learn what, if any, diligent search was actually performed to locate the owner only through discovery in costly federal court litigation.

In other words, anyone can take a copyrighted work, claim they did a "diligent search" for the owner, and then use that work without notice or compensation to the copyright owner. If the copyright owner does become aware of the illegal use through sheer luck, the burden is upon the owner to accept "reasonable" compensation, or take the user to court. The new legislation will apply to all works of authorship, even if registered with the Copyright Office prior to the unauthorized use. Registered works can lose the right to statutory damages and attorneys' fees, long a fundamental legal right in the Copyright Act designed to encourage registration of a work.

"The Orphan Works bill has the potential to erode the protection that copyright owners have fought for over many years," says past President of the California Copyright Conference (CCC) and the Association of Independent Music Publishers (AIMP), attorney Steve Winogradsky. "It puts the burden on the copyright owner to find the offending parties and either negotiate with them without the remedies currently available to bring about reasonable compensation or bring costly litigation. In short, for copyright owners, the Orphan Works bill is a disaster."

The Copyright Office not only endorses these bills, they initiated the Orphan Works legislation. In May 2008, the Registrar of Copyrights submitted a letter to a representative of the Judiciary Committee recommending the elimination of even minimal protection for copyright owners. The House version includes a provision for the so called "Dark Archive," which would require the user to submit a Statement of Use with the Copyright Office. The Registrar opposes this provision on grounds it is too burdensome on the users and too difficult for the Copyright Office to administer. Without a Statement of Use, copyright owners have no way to find out who is using works of authorship, and for what purpose.

Beverly Hills copyright attorney Cheryl Hodgson, current President of the California Copyright Conference explains: "The original premise of this legislation was to protect libraries, museums, and other not-for-profit users in efforts to digitize archives of materials for which owners could not be located. However, as drafted, the legislation goes much further. It applies to any use of a copyrighted work. In short, it creates an incentive to steal first, and pay later if caught! Policing infringing uses on the Internet is already difficult. This raises the bar and places the burden on copyright owners to locate infringers of their works, at the same time threatening to wipe out 100 years of legal protection under U.S. law."

The CCC and the AIMP recently issued a joint position paper opposing S. 2913 and H.R. 5889. An excerpt from this paper outlines some of the reasons why these bills have been created:

"The Internet, computer and consumer electronics industries utilize vast amounts of copyrighted works to attract customers to their websites, from which they derive enormous profits from advertising and subscription fees. These industries have long sought to eliminate copyright protection and to avoid paying for the content they use to lure consumers. At the same time, companies such as Google and other computer-related interests have provided more than million dollars to the Library of Congress, of which the U.S. Copyright Office (which initiated the Orphan Works legislation) is a part."

Go to to download a free copy of this paper. As of May 15, 2008, bill S. 2913 has been placed on the Senate Legislative Calendar and is scheduled for debate in the near future.

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