[Lightstalkers] Orphan Works Petition Submitted

Orphan Works Petition Submitted

Wed, 12 Mar 2008 12:54:35 +0000

Just to let you all know, I sent off our petition today, as the hour for its delivery has arrived and there is no point in delaying it further. We gathered 559 signatures.

The Following is a message from IPA:

FROM THE ILLUSTRATORSâ€™ PARTNERSHIP

First the good news. It appears that the Orphan Works bill wonâ€™t let someone infringe your work just by saying he couldnâ€™t find copyright information on the work itself. Heâ€™ll have to say heâ€™s also made a good faith effort to find you through other means. The bad news is you can either take his word that heâ€™s done so or you can take him to Federal court.

We havenâ€™t had time to get a professional analysis of the Orphan Works bill yet, but on first reading - and in spite of a few beneficial changes - it still appears to be not an orphan works bill at all, but a frontal assault on copyright, â€œthe dawn of a new, user-focused era in copyright legislationâ€* as one giddy legal scholar wrote yesterday.

The most striking aspect of the official bill remains its casual no-fault attitude toward infringement. The language treats copyright abuse as just another form of copyright usage:

â€œ...the remedies for infringement shall be limited under subsection (b) if the infringer sustains the burden of proving, and the court finds, thatâ€”(A) before the infringing use of the work began, the infringer, a person acting on behalf of the infringer, or any person jointly and severally liable with the infringer for the infringement of the workâ€” (i) performed and documented a reasonably diligent search in good faith to locate the owner of the infringed copyright; but (ii) was unable to locate the owner; and... [etc.]â€* (our emphasis).

Try substituting â€œthiefâ€* or â€œtheftâ€* for â€œinfringerâ€* and â€œinfringementâ€* and itâ€™s clear what a stunning reversal of common sense this bill embodies toward the treatment of private property.

The second striking aspect is the the bill's unhealthy reliance on the courts to resolve the abuses the bill itself will generate. We make our living licensing the rights to our work. Our time is already consumed adjusting to short deadlines and shifting business conditions. We shouldnâ€™t have to make traipsing to Federal court a routine part of our business experience just to get paid for the use of our work.

Then thereâ€™s the matter-of-fact assumption that good faith infringement can be easily and reliably established, either in or out of a courtroom. It canâ€™t. Yet this bill will make it the touchstone for establishing whether someone has the unauthorized right to use our work.

With all due respect, this bill needs to be more than just changed. It needs to be opposed. Other countries are finding ways to solve the orphan works problem without a wholesale weakening of creatorsâ€™ rights. Why canâ€™t we?

-Brad Holland and Cynthia Turner, for the Board of the Illustratorsâ€™ Partnership

To read the bill itself, follow this link: http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00214

Re: Orphan Works Petition Submitted

Fri, 26 May 2006 07:20:03 +0000

bumping this to the fore so people see it.

Re: Orphan Works Petition Submitted

Fri, 26 May 2006 08:18:47 +0000

Thanks for all the work on this, Jon and Gayle. 559 is a good amount of people, I think, taking into account some of the registered names on Lightstalkers are just that, registered names. Let's hope that this effort will have an effect. In addition, I also urge everyone in the U.S. to keep on their representatives about this and make sure they know your opinion. There is still some horrible wording on the new version that makes it easy to get away with using _your_ work without compensation. "Take a look; click here.":http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00214 (Post edited to include correct number of petitioners; not enough coffee...)

Re: Orphan Works Petition Submitted

Fri, 26 May 2006 08:23:29 +0000

559 it is, and I agree, I think it is not bad at all when all is said and done. Along with our older members, there was a flurry of activity among newer members recently signed on, which is a good sign for LS. I have noticed a spike in activity among these newer members,and it makes me glad to hear new voices.

Re: Orphan Works Petition Submitted

Fri, 26 May 2006 08:37:29 +0000

Good work Jon. You're a star.

Re: Orphan Works Petition Submitted

Fri, 26 May 2006 11:25:18 +0000

Thanks for all the work guys!

Re: Orphan Works Petition Submitted

Fri, 26 May 2006 13:35:39 +0000

Thanks to Jon, Gayle, the 559, and anyone else who chipped in on this very worthy cause. MK

Re: Orphan Works Petition Submitted

Fri, 26 May 2006 14:59:19 +0000

Let's hope people stirred this issue up enough to make the reps aware of the outrageous shortcomings of the bill. After seeing the webcast from the meeting on 24th I got the impression they were on to it, but apparently they were just brabbling all the concious stuff for their own sakes, as in the end they just PASSED it. Thanks Jon, Gayle and Sion and all the others for making us aware of the issue, and for commiting their time to organise an opposition! 559 signatures is not bad at all!

Re: Orphan Works Petition Submitted

Fri, 26 May 2006 16:03:46 +0000

You all are very, very welcome! Thank you for supporting us with your questions, concerns, comments, signatures, encouragement and efforts. We are now ahead of the game with this timely petition. However, we will keep you informed about the next opposition step you can take to defeat this bill when the appropriate time comes.
In the meantime, and if you feel so inclined, don't ever hesitate to voice any appropriate concerns to your elected officials. _*Remember, it is their job to listen to you.*_
Here is the latest from IPA:

*FROM THE ILLUSTRATORS' PARTNERSHIP*
Yesterday [May 24, 2006] the Orphan Works Act of 2006 [HR 5439] was marked up by the House Subcommittee on the Courts, the Internet and Intellectual Property. It was approved by voice vote and sent to the full Judiciary Committee.
At the afternoon session, which was webcast live, Rep. Howard Berman (D-CA) praised the bill, but also expressed concern for the rights of illustrators and photographers. Then, last evening, Chairman Lamar Smith (R-TX) called another meeting which had not been publicly announced. At that meeting, the legislation was passed. The vote was "unrecorded" so there is no record of who voted for or against it (or in fact, who voted at all - only a quorum was present). Eyewitnesses report that the vote was unanimous.
The legislation will now go before the full committee for a vote. According to a reliable source, Chairman Smith expects the bill to be marked up by the full Committee at the first mark-up session after Memorial Day recess.
This bill will expose our past and future copyrights by legalizing infringement immediately upon creation. Weâ€™ll send you more information about it in the next few days, but we believe this is the time for artists to mobilize again. Weâ€™ll notify you shortly where to send your letters. Thank you for your continued support.
For additional information about Orphan Works developments, go to the IPA Orphan Works Resource Page for Artists *http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185* Or see IPA Forums: â€œFree Culture-The Copy Left Is Not Right.â€* You may post responses or ask questions on these forums. First-time users will be asked to register. You do not need to be an IPA member to use the IPA public Town Hall Forums.
Please post or forward this email in its entirety to any interested party

Re: Orphan Works Petition Submitted

Sun, 28 May 2006 03:36:04 +0000

Let's start breaking this down...
Take a good look at this small portion of the US OW Bill just out and tell me how you think these 34 words will affect your past, present and future work.
You will be shocked to find out, you will be shocked to know, that.... _*YOU HAVE JUST ENTERED THE TWILIGHT ZONE*_:
20 â€˜â€˜(d) COPYRIGHT FOR DERIVATIVE WORKS.â€”Not- 21 withstanding section 103(a), the infringing use of a work 22 in accordance with this section shall not limit or affect 23 the copyright protection for a work that uses the infringed 24 work.â€™â€™. Page 9
*http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00214*
Remember that copyright refers to _ALL_ intellectual property, not just artwork. Copyright denotes creative ownership of many different types.
For example, as you can see from the bottom of this website page, copyright also refers to Lightstalkers.org Â©2004-2006 November Eleven, a nonprofit organization.
If you have a lawyer ask them to look at this portion of the Orphan Rights Bill. Ask them to explain to you how these 34 words if passed into law will eliminate the idea of exclusive rights to your intellectual property.

Re: Orphan Works Petition Submitted

Sun, 28 May 2006 03:39:41 +0000

WHAT DOES THIS MEAN TO YOU???
20 â€˜â€˜(d) COPYRIGHT FOR DERIVATIVE WORKS.â€”Not- 21 withstanding section 103(a), the infringing use of a work 22 in accordance with this section shall not limit or affect 23 the copyright protection for a work that uses the infringed 24 work.â€™â€™. Page 9

Re: Orphan Works Petition Submitted

Sun, 28 May 2006 04:06:15 +0000

Thanks Jon and Gayle, for all your hard work on this. Cheers.

Re: Orphan Works Petition Submitted

Sun, 28 May 2006 04:27:02 +0000

You are very, very welcome Wendy. And I know Jon & Sion feel the same.
Thanks very much for your encouragement. It is appreciated.
We will keep you all posted as to a now in the works strategic letter writing campaign to target specific elected officials that have been told by the House that we creative artists actually _*want*_ this Bill passed. That is correct, someone's representatives' nose has been allowed to grow into a corporate Redwood. I-: As it still sits firmly attached to their face today, they shouldn't be too difficult to spot.
However, don't despair, our other elected officials are beginning to take notice of it, thanks in part to your persuasive International Petition, that you indeed do _*not*_ want this Bill passed in the USA, or anywhere else for that matter.
So, get your pens and keyboards ready to let them know exactly how you feel about that big lie! But don't let me stop you, start thinking about that letter today! (((:
_*Beneath the rule of men entirely great, The pen is mightier than the sword.*_ Edward Bulwer-Lytton (1803 - 1873) English dramatist, novelist, & politician

Re: Orphan Works Petition Submitted

Sun, 28 May 2006 06:45:16 +0000

It sounds to me that those that are trying to put this bill in act have not thought the thing through.

They seem to forget that Internet, books, magazines (for one) have no borders as do countries and that this bill will have no effect on my images (or other foreigners) as the law in their respective country will be the main ground and also International agreements , like Bern. This means f.x. that my images (at my home-page) are protected by my home countries laws and international law (no matter what other countries vote to put in theirs law) In the Icelandic (and the scandinavian law) there is this simple statement that says (simplified here)all intellectual property are the sole property of its author , fully copyrighted, and for no one to use with out proper license from copyright holder.

This means that any one that takes/makes images or other things that can be categorized as intellectual property is automatically protected and does not have to register it.

As it seems that this Orphan Bill will go against the Bern agreement I can see a grate cost rise for companies/any one using images from this "image pool" and then have to fly their lawyers around the globe to defend that act.

Re: Orphan Works Petition Submitted

Sun, 28 May 2006 20:33:41 +0000

Dear Kristjan,
Thanks so much for your excellent response. And that is exactly correct. And I truly hope that your work will not be affected by the US Market if this law is passed.
You are also correct. This Bill is in violation of the Berne Agreement, _however_, we don't think that it's supporters, as you have so civilly concluded in your response, "have not thought the thing through." We believe that it is an intentional violation of the Berne Convention that will result in an international "Rights-grab" of original work off the Internet to be dumped into the *USA*'s royalty free market. This will notjust invite other countries to join in on a first come, first serve basis, it will _*challenge*_ them to compete with this renegade US Copyright law.
As you already know, the Bill carries with it a charade of helping the pubic gain access to legitimately orphaned works. It's results just seem as if it hasn't been thought through, because _*in the US*_ it will defend the rights of the infringer and not the creator. The OW Bill was written backward. See the _Infringers' Bill of Rights_ at: *http://illustratorspartnership.org/ubb/ultimatebb.php?ubb=get_topic;f=5;t=000385;p=1#000000*
FYI, the US OW Bill is also in violation of TRIPS.
_"TRIPs is the International Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). The US is a member. The Three-Step Test is a sequence of three simple questions that let a nation decide whether the exceptions they write into their national copyright laws will interfere with your right to market your work â€“ and therefore make that country a copyright renegade.
Remember, copyright law gives you the exclusive right to decide whether your work is to be exploited - and when, where and under what terms. The law acknowledges narrow limitations and exceptions to that right â€“ so long as the exceptions donâ€™t exceed the constraints of the Three-Step Test. Hereâ€™s the test, as described in Article 13 of the TRIPs Agreement:
â€œMember [countries] shall confine limitations and exceptions to exclusive rights to: (1) certain special cases (2) which do not conflict with a normal exploitation of the work (3) and do not unreasonably prejudice the legitimate interests of the rights holder.â€*
.......
"The IPA is an associate member of the IFRRO. We have been providing comprehensive updates on these developments to other members of that body, as well as to the 42 international arts organizations that signed our submission to the Copyright Office last year."_ *http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00197*
*http://www.copyright.gov/orphan/comments/OW0660-Holland-Turner.pdf*
It is our job, no matter what country we are citizens of, to keep writing letters to our elected officials and keep putting the pressure on them with regard to expressing displeasure to the US Congress about the effects that the passage of this renegade US OW Bill will have on our rights as small businesspersons to engage in free market trade.
And PARTICULARLY, we have a _*responsibility*_ to do so in the US. We US citizens HAVE A DUTY to THE INTERNATIONAL COMMUNITY OF CREATIVE AUTHORS to let Congress know that they are being mislead by Internet corporate interests (even Getty and Corbis don't want this Bill to pass) and, in this OW Bill, that the true letter of the law is being bent for the likes of Google.

Re: Orphan Works Petition Submitted

Wed, 31 May 2006 00:19:52 +0000

*FROM THE ILLUSTRATORSâ€™ PARTNERSHIP*
The Orphan Works bill contains a terrible new provision that gives an infringer exclusive rights to the entirety of an orphaned work if the infringer uses that work in a â€œderivative work.â€* A derivative work is one made by incorporating the work of others.
House negotiators have removed the requirement that infringed art be used in a derivative that contains substantial original expression. This means an infringer could now simply crop or desaturate your work, then use it again with complete immunity from prosecution. Hereâ€™s how the law would change:
Under current copyright law, you have exclusive rights to the original work you create. This includes the right to prepare new, derivative works from your old works, or to authorize (or refuse to authorize) others to do so. If someone creates a derivative work by infringing yours, current law doesnâ€™t entitle them to copyright protection. Hereâ€™s what the current law says:
103(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
http://straylight.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000103----000-.html#a (Sorry, this url doesn't work here because the hyphens cause a strike-through-. The last 15 characters of this url should read: *hyphenhyphenhyphenhyphen000hyphen.html#a* )

But under the Orphan Works amendment, an infringer could now confiscate this exclusive right - not by creating a substantially new work â€“ but simply by infringing yours. The infringer would receive full copyright protection. Hereâ€™s what the bill says:
_â€˜â€˜(d) COPYRIGHT FOR DERIVATIVE WORKS. â€”Notwithstanding section 103(a), the infringing use of a work in accordance with this section shall not limit or affect the copyright protection for a work that uses the infringed work.â€™â€™_ *http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00214*
This measure will have far reaching implications. For example, it will undermine your ability to negotiate exclusive rights with clients â€“particularly buyouts for advertising or institutional clients - because neither party in a business transaction can guarantee exclusivity.
It will also let opportunists capture the full rights to existing work. Stockhouses, for example could harvest â€œorphanâ€* works, modify the work slightly and claim it as their own. These â€œderivative worksâ€* would then become the wholly-owned, fully-protected copyrighted work of the stockhouse.
And free culture advocates could now appropriate orphaned work and embed it with the viral Creative Commons share-alike license. (See Orphaned Art and a Copyright Virus: *http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00190*)
This provision has been expanded from the original Copyright Office proposal. It was added during closed door negotiations. Put it at the head of your list of things that are wrong with this entire Orphan Works project.
â€” Brad Holland and Cynthia Turner, for the Board of the Illustratorsâ€™ Partnership
To read H.R. 5439 - The Orphan Works Act of 2006, go to *http://thomas.loc.gov*
For additional information about Orphan Works developments, go to the IPA Orphan Works Resource Page for Artists *http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185* Or see IPA Forums: â€œFree Culture-The Copy Left Is Not Right.â€* You may post responses or ask questions on these forums. First-time users will be asked to register. You do not need to be an IPA member to use the IPA public Town Hall Forums.
Please post or forward this email in its entirety to any interested party.

Re: Orphan Works Petition Submitted

Wed, 31 May 2006 07:39:42 +0000

*"STATUS OF THE ORPHAN WORKS PROPOSAL"*
"Message from Victor Perlman to all ASMP members:
_"..... As you can see if you compare the attached draft with the original Copyright Office proposal, we have been able to achieve a number of significant improvements for the benefit of photographers and artists. Despite those successes, we believe that there are some areas that still need to be changed, such as the so-called "safe harbor" (limitations on monetary relief). Because of that, we will be calling on you within the next several days to contact your representatives in the House to ask for additional changes...."_ *http://www.asmp.org/news/spec2006/orphan_update.php*

Re: Orphan Works Petition Submitted

Thu, 01 Jun 2006 00:00:02 +0000

*FROM THE ILLUSTRATORSâ€™ PARTNERSHIP*

*As the Orphan Works bill barrels along, the first thing to remember is that so far, this is only a House bill*. The Senate will now draft a bill of its own. Weâ€™ll tell you what you can do to oppose this amendment below, but first, letâ€™s review:
*The Orphan Works Study was conducted in 2005 and released by the Copyright Office January 31, 2006*. It has now been transformed into the House Bill (H.R. 5439). The Senate will still rely on The Orphan Works Study as an authoritative source in drafting the Senate bill.
*The House Subcommittee* drafted its bill (H.R. 5439) after one hour of public testimony March 8, 2006. Four witnesses testified. Artists were not invited. Chairman Lamar Smith (R-TX) told witnesses that any group which opposed the bill would be â€œleft behind.â€* Witnesses agreed (or were pressured to agree) that they would consent to a speedy compromise on the billâ€™s final language.
*House Negotiations*. By invitation only, House negotiators met between March and May for 20 hours of closed-door sessions. Creators were represented by Professional Photographers of America (portrait, wedding and baby photographers) and by the American Society of Media Photographers (speaking by default for illustrators and graphic artists). A lobbyist for Getty and Corbis was also appointed by the House to represent creators.
*The Orphan Works Act of 2006 (H.R. 5439)*. The House bill was introduced to the subcommittee last Monday, May 22, 2006 and marked up 2 days later by voice vote of a quorum of the subcommittee. Chairman Smith intends to move the bill out of full committee immediately and into the House of Representatives where it will be voted on. The House has been told that the bill represents the best interests - and the consent - of all parties.
*Our Immediate Strategy*. Because the bill has been moved so quickly, artists will now have no time to express their opposition to members of the House Judiciary Committee. We must shift our focus to our district Representatives and members of the Senate Judiciary Committee.
*Your Own Congressman*. Locate the name and address of your own House representative. You can do this by going to *http://www.house.gov/* and simply entering your zip code in a search box. Over the next few days, weâ€™ll supply you with bullet points to use in your letters. Please remember to emphasize that this bill far exceeds the mandate of an orphan works bill and that it will interfere with our rights as small businesspersons to engage in free market business transactions.
*Senators*. For the moment, we think it will be most effective to target Senators on the Senate Intellectual Property Subcommittee. Weâ€™ll provide you with the information to proceed.
*Please remember that what has happened in the House subcommittee is the result of negotiations that were put in place before artists began writing letters to Congress*.
*It was a result of your letters* that the Illustratorsâ€™ Partnership was invited to testify before the Senate April 8. This shows that if we speak out, we can be heard. No one should think that a letter to your senator or congressman will be wasted or used to prove disunity within our field.
*Artists may disagree on how to respond to the theft of our rights, but we can all agree we donâ€™t want our rights stolen*.
â€” Brad Holland and Cynthia Turner, for the Board of the Illustratorsâ€™ Partnership
*To read H.R. 5439* - The Orphan Works Act of 2006, go to *http://thomas.loc.gov* Enter H.R. 5439 in the search box, and select the "Bill Number" search option. It will take you to a master page where you can monitor this Bill's status as it moves through the process. You can review who signs up to Cosponsor the Bill, amendments that may be added, and all Congressional actions on votes and reports. *http://illustratorspartnership.org/ubb/ultimatebb.php?ubb=get_topic;f=5;t=000388*
*For additional information* about Orphan Works developments, go to the IPA Orphan Works Resource Page for Artists *http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185* Or see IPA Forums: â€œFree Culture-The Copy Left Is Not Right.â€* You may post responses or ask questions on these forums. First-time users will be asked to register. You do not need to be an IPA member to use the IPA public Town Hall Forums.
Please post or forward this email in its entirety to any interested party