Silly Girls In Dresses

controversial orphans
August 26, 2008, 9:15 pm
Filed under: Uncategorized

(written on August 14th)

On Wednesday I start law school. I’ve got less than a week before I commence on my path to becoming an intellectual property law scholar. My stomach feels like a too-big ball of peanut butter that was swallowed too hurridly, and now is condemned to sit there and be slowly, uncomfortably digested for all eternity. I’m also excited.

However, despite the fact that my formal IP education doesn’t begin for a few days, I’ve been informally educating myself on the issues for a while now. Learning about something on your own takes a long time, and for a while in the beginning, you feel like a complete moron as you clumsily try to decipher concepts, articles, ideas. However, after 4 years, I think I’m finally starting to be able to understand the major issues and positions, and how they all intricately fit together.

The fight over copyright seems to have come down to a battle between the copyRIGHT and the copyLEFT: the former emphasizes protection of private property, while the latter is desperately fighting to protect the public domain. One of the things I find so thrilling about this fight is that, at least for me, there is not clear right or wrong. Both sides are correct, and both sides are wrong. Finding a balance between them is a mind-twisiting, vicious, petty cat-fight that kinda turns me on (ow ow!). The most recent example of this battle is the debate over orphan works. 

Orphan works are, simply speaking, creative works (such as a song, a picture, a movie), where the copyright owner is hard or impossible to find. If you want to use a work, you need the permission of the copyright owner. If you cannot find the owner, and you decide to use the work anyway, you might be liable for up to $150,000 in damages per use of the work if the copyright owner somehow surfaces and decides to sue you. The orphan works bill is a response this situation.

Basically, the Orphan Works Bill of 2008 (at least the Senate version), would make it easier for orphan works to be used. The bill requires those who use the copyrighted work to prove they have conducted an exhaustive search, ad even provides them with search guidelines. The bill is also intended to spur the creation of private copyright registries, which would hopefully be more effective than the current painfully inadequate Copyright Office registry. Artists could register their works with these private registries to ensure that their works would be easy to find. If a work is used without permission, and a copyright owner finds out, the bill provides remedy in the form of compensation.

There are two versions of this bill up for consideration – one in the House and one in the Senate. The Senate’s is more benign, while the House’s has some issues, but right now, I’m just going to deal with the basics and not go into details.

The facts are this: there has been an enormous outcry from artists AGAINST the bill. Frankly, while I understand their point of view, I don’t really agree with it 100%.

Artists have been claiming since 2006 (when the issue of orphan works first really came to the table in the government)  that this bill is out to “steal” their works, that major corporations will use it to gather up works for their own use, and that all of your creative works will be stripped of rights unless you pay (by paying a registration fee) to protect it.

BUt is it really that bad?

If the Senate version of the bill passes, and there are extensive guidelines concerning a search for the copyright owner as well as provisions for liability and damages if you do mistakenly use a copyrighted work, then maybe this is not so bad. Many artists, especially in modern culture, have ridden the wave to success through another artist’s use of their work. Just take a look at Dido (I don’t know if anyone heard of her before Eminem sampled one of her songs) or the soundtrack to Grey’s Anatomy. Granted, these examples are not completely relevant because all of those artists got paid for those uses. However, we must remember that many of these works are ORPHANS – their copyright owners have abandoned them! If, in fact, the work begins to see some measure of success through exposure in another medium, then they copyright owner will only benefit. Subsequent uses will not be considered orphan works, because, hopefully, the copyright owner will make him or herself known!

This also brings me to another issue: the responsibility of owning a copyright. I understand that the Copyright Office and the whole system are a ungodly mess, but really, if you are are artist, and you have even a slight desire to have your work used commercially, or even publicly, by you or others, than you should pay attention to what you need to do to protect your rights. The systems are there, however hard they are to use. I don’t think whining about how “its too hard” is an excuse. You create this work . . . it is like giving birth! You need to protect it! A new mother wouldn’t be excused for not taking care of her newborn because it was too hard, and she was confused.

Frankly, I also recognize that in the event you make a good effort to register your copyright, and somewhere down the road someone uses it without your permission after searching for you and failing to find you, adn you don’t get paid a $10,000 licensing fee…that sucks. Something should be done to protect you from that event. However, I don’t think the Orphan Works Bill will create a free-for-all when it comes to using works. 

Please let me know if you disagree, but only if you tell me WHY. I hate when people just yell at me, and don’t give me reasons. I LIKE reasons. I WANT to hear the other side. So go for it.


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