Terminate with Prejudice: “Orphan Works” Bills

Congress has decided to consider bills in the House and the Senate to limit copyright remedies in the case of “orphan works”. There are loads of works that are created and somehow their distribution gets ahead of the credit that links them to their creator. Under current copyright law, prospective users have to demonstrate permission to use all created works, else they risk large liabilities when the creator of the work sues them for infringement. The new legislation aims to limit the liabilities that users of copyrighted works run when they incorporate “orphan works” — that is, copyrighted materials whose owners are not obvious — into their own works or derive new works from those.

The Senate Bill is online. There are a number of issues in the bill, but the following part looks to give infringers way too much latitude:

‘(e) Copyright for Derivative Works and Compilations- Notwithstanding section 103(a), an infringer who qualifies for the limitation on remedies afforded by this section shall not be denied copyright protection in a compilation or derivative work on the basis that such compilation or derivative work employs preexisting material that has been used unlawfully under this section.

The proposed legislation makes it such that a creator of a work must go to greater lengths to protect their work. Currently, all created works are assumed to have strong protection and users must justify all uses. Under the new legislation, unless the link between creator and created work is officially registered, an infringer can use whatever comes to hand and the creator of the work can only seek “reasonable” rates for use of the work, if the infringer is in the commercial sphere, and will be completely out of luck if the infringer can claim educational or religious use of the work. The new legislation burdens creators to spend time and money on administrative trivia simply to protect what is, under current law, already theirs. When infringement happens, and the new legislation is aimed at making sure it does, the creator cannot even expect to be compensated for the costs of taking up a claim through the legal process. Creators have to rely on the good faith of infringers to engage in negotiations to determine compensation for use; if they are forced to go to court, infringers are almost certain to be able to force creators to spend more on lawyers and court costs than the limited “reasonable” rates for use of the work will put at issue. And you may be sure that the creators are going to include a mass of people who have casually created works that are infringed by corporate interests with plenty of legal talent either on retainer or on staff.

For those who want to make themselves heard arguing against these bills, here is a site for sending email to your Congressmen and Senators.

Wesley R. Elsberry

Falconer. Interdisciplinary researcher: biology and computer science. Photographer. Husband. Christian. Activist.