On behalf of a [friend] who is visual creator in my life, I am writing to express my grave misgivings about The Shawn Bentley Orphan Works Act of 2008.
I strongly oppose this bill.
I am not opposed to usage of orphan works by the cultural heritage sector for noncommercial purposes, or use by museums and libraries for preservation and education. This legislation, however, makes no limitations for these purposes. It will dangerously expose my [friend’s] art to infringements while stripping [her/him] of any practical means to protect [her/his] work.
The Orphan Works Act has the potential to do great harm to those who create intellectual property and us, their supportive network. If the intent of the bill was to allow museums, libraries and other not-for-profit institutions to legally exploit the creative work of authors who are difficult to locate, it has been used to extrapolate a widespread market failure, which the authors of this bill have not documented.
My [friend] is a working artist trying to manage [his/her] copyrights. [He/She] is easy to locate. This bill would allow anyone to declare any artist unlocatable. It allows easy access to artwork without the original artist’s consent.
My [friend] is often required to omit identifying information from (his/her) work. In addition, credit lines are frequently omitted, occasionally for legitimate reasons, sometimes not.
As a supporter of the rights of artists, I have the following objections to the Orphan Works 2008 bill:
1. It undermines the 1976 U.S. Copyright Act (enacted in 1978), in ways that will make it virtually impossible for me to protect my work.
2. It will burden artists to attempt to protect their work, at their expense, by registering it with a digital database system --when no such system currently exists.
3. It will eliminate statutory damages wherever an infringer can successfully claim an orphan works defense, thus removing the only tool the law provides artists to deter deliberate infringement.
4. It will allow for an infringer (including non-profits) to create —and copyright— a derivative work from an original illustration — even if the artist, as copyright holder to the original work, objects.
5. This bill would violate the Berne International Copyright Convention and fail the three-step test of TRIPs, which requires that exceptions to an artist’s exclusive rights should be limited to certain special cases, not interfere with an artist’s normal exploitation of his work, and not prejudice a rights-holder’s legitimate interest.
In short, the Orphan Works Act fails to properly define the category of orphaned work. It sets the infringer’s bar of due diligence so low that it virtually guarantees abuse.
I ask you to consider the harm this bill can do to visual artists, their businesses, and the businesses and people that rely on their protected creativity. Please vote against it unless it is amended to precisely define an orphan work as a copyright no longer managed by a rights-holder.
Thank you for the opportunity to comment on the proposed Orphan Works legislation.