The Orphan Works Act

Since I'm blogging about politics this week, there's one other piece of legislation worthy of everyone's attention -- the Orphan Works Act, H.R. 5889 and S.2913.

Orphan works are copyrighted material that has been abandoned. A book published by a defunct publisher is a good example. Although the copyright may not be expired, the copyright holder no longer exists -- and the work cannot be used by anyone else. As I've pointed out in an earlier post, this can be a real problem, especially for archivists.

As the law's currently written works copyrighted after 1922 are protected for 95 years (and ones after 1978 even longer). So everything between registered between 1922 and 1978 is off-limits until 2019 at the earliest. Which means that books, films, and recordings from the 1920's deteriorate beyond recovery, while libraries watch helplessly. They're unable to make copies of this material because it would violate the rights of an owner who no longer exists.

There's more to this, of course, which is why the Orphan Works Act is a hugely controversial bill. Currently, there are massive penalties for the unauthorized use of copyrighted material. So if you used something you thought was an orphan work, and the owner showed up, you could be on the hook for huge punitive damages.

The bill basically tweaks the law a little. It would require the user to use "due diligence" to seek out the copyright owner. If one can't be found, then they can proceed. And if later the owner shows up, then they are entitled to the proceeds and profits from the unauthorized use of their material, but not punitive damages.

Artists are up in arms. As they see it, someone could take their work, claim they didn't know it wasn't public domain, and pay them peanuts. Well, the key is actually what "due diligence" entails. The most current artwork is pretty easy to trace -- especially online -- so there's some recourse. If someone just claims they "thought" it was in the public domain when the owner steps forward, then they're still liable for punitive damages. The onus of proof is on the user that they made a reasonable effort to determine who owned the work and to contact them.

The Electronic Frontier Foundation's weighed in with their view. The EFF's take on it is similar to mine -- protection is still in place for the artists, but now it's been added for users who can prove they thoroughly researched the copyright before appropriating the material.

So is this a good bill or no? To answer that question, I went to the source, read the legislation for myself and then decided. OK, I know I've made my views fairly clear in this post, but for anyone reading about this bill for the first time, I suggest you don't take my analysis on faith. Go to the source and read the bill for yourself. Then you'll have a point of reference for considering the pros and cons of this debate.

After all, the idea here is to promote more democracy in action, not democratic inaction.

- Ralph