And, I hope when reading this article that everyone makes note of several things...
For one, this legislation deeply effects all copyrighted work, not just Orphaned Works, as it is titled.
But, beyond that:
1. The 'needs' of museums, colleges and universities who have large, historical collections they'd really like to display publicly/online are the primary cited and most publicly discussed reasons for both the Senate and House versions of the bill. This is sort of the touchy-feely, sympathy appeal justification for the legislation.
That's simply a fallacy and a smoke screen.
The article rightfully notes that non-profit usages such as this already enjoy some exclusions and protections under current copyright law. What the article doesn't really say is that about the worst that can happen now in most cases if a copyright holder were to complain, is that the museum, library or school 'infringer' would simply have to take the image down... Stop displaying it. Not much real harm done.
There's a case cited in the legislation, where exactly that happened. Sure, it was inconvenient and there was some small cost, and perhaps some embarrassment involved because it was a large, public exhibit. But, in the end, it's not like they were sued for millions, spent years defending themselves in court and ended up in bankruptcy due to legal fees and punitive damage awards. They merely had to take down the exhibit.
2. The real impetus behind these bills is never talked about much in any of the articles I've seen. Since you can bet that it isn't really the museums, libraries and schools mentioned, which incidentally don't typically make significant campaign contributions to our elected officials.
Read a lot further down in the legislation and the US Copyright offices analysis of it, deep in the list of supporters and proponents of the bills. You'll find some interesting names there: Getty, Corbis/Microsoft and Google, among some others.
Now commercial, for-profit corporations such as these do tend to contribute heavily to our elected officials campaigns, gaining influence along the way. So you can lay odds they're much more likely to be the real driving force behind this legislation, which has somehow managed to stay alive or be reborn several times over the past few years, and most recently 'sneak' past in vote as an attachment to another bill.
Why would Getty, Corbis, Google and the like want to see this fundamental change to copyright laws? Simple really... Profits. Big potential profits. Way big!
These companies have major, vested interest in many aspects of the legislation.
Some already have huge and growing archives of mostly unusable images, under current law, that would suddenly become 'safely salable' under either version of 'Orphan Works', whether the image in the archive is truly 'orphaned' or not. In other cases it 's less clear or more indirect, they would like to have free reign to display works online, or perhaps to be part of any re-organizing and privatization of the entire US copyright registration process.
As a result of OW legislation, these firms would only have to do a lot less research trying to find if an image is usable. As it stands now, they have to invest considerable effort and expense to locate unknown copyright holders, and even then probably have limited success. The reason they have to lay out the effort and money is because the penalties of mistakenly using an image can be so high. These are costs I'm sure they'd love to see go away.
Plus, the proposed OW laws don't go very far to define what constitutes a 'reasonable, good faith effort' to find a copyright holder. It might be a quick search of any 'official' database... Where currently it's proposed to use a search tool that is touted as '90% accurate - as if that's a good thing. What it will actually mean is perhaps a million errors and oversights could and would occur in searches that are done each and every year!
Even if an infringement occurs, their liability is vastly limited to 'fair market' compensation for usage. And, guess who has huge influence upon what constitutes 'fair'? How about the two largest stock image companies on the planet.
A copyright holder will have a tough time getting legal assistance to pursue infringers, even if they have the most obvious and clear cut case, because without liability beyond 'fair market compensation', there are no attorney fees being recovered nor any punitive damages, so no legal firm will take on the case on a contingency basis. So, unless an 'infringee' has deep enough pockets to hire a legal firm on their own, knowing they won't be reimbursed for those costs, there will be little danger of a lawsuit being brought against an infringer.
Finally, I'm not quite sure who are the front runners to establish and operate a privatized version of the U.S. Copyright office, but you can bet they would be another for-profit company or companies with strong vested interested in seeing Orphan Works pass. This will be a huge business, and wouldn't it be great, from a business perspective, to have complete access to the entire image database and know exactly when copyrights expire or are not filed in a timely manner?
I think we can safely assume that commercial, for-profit companies will be the real beneficiaries of Orphan Works legislation, not the museums, libraries and schools, and certainly not the general public or individual copyright owners.
3. So, what's the government's interest in this proposed change? Well, I suspect they see this as an opportunity to spin-off and privatize the copyright recording and database maintenance process, which would pretty much eliminate most of the costs associated with the current U.S. Copyright Office. Not to mention potential savings in the federal court system that hears any cases of infringement on registered works. Many of those cases would simply go away, to be heard in local, small claims court... if at all.
Of course, they could privatize the copyright process even under the current laws, perhaps some minor legislative tweaks would be all that's needed.
Still, is this the sort of thing that should be in the hands of a commercial, for profit firm?
4. The article indirectly mentions briefly how out of step with the rest of the world the U.S. would become with a proposed alternative. That would also be quite true if either version this Orphan Works legislation were enacted. It's not 100%, but as it stands now, at the very least the Bern Convention and other international efforts have created some uniformity and accountability among the vast majority of the world's nations.
With the rapidly increasing globalization we are seeing thanks to the Internet, going off in an entirely different direction just seems to be precisely the wrong thing to do. Who's to say what pervasive ramifications Orphan Works will have on global business.
Personally I think we'd be better off sticking with the current laws. If really needed, those could easily be refined to address the concerns of non-profits like museums, libraries and schools, and working to be more in step worldwide, than starting over again with what is at best a dangerous and difficult model. Heck, even some of the corporate interests might be addressed in some ways, I'm sure. Just not with the blank or nearly blank check they are seeking so strenuously in the two Orphan Works versions presently on the table. I really don't like that several major photographer organizations have thrown their support behind one bill on the basis that it's 'the lesser of two evils'.
Current US copyright law protects the interests of all people equally. Anyone who creates anything that's covered by copyright, automatically is protected in a manner that is presently strong and favorable to the copyright holder. Orphan Works would substantially reduce that, even though it's purports to only address 'orphan works', largely because it would remove a lot of the penalties that can now be levied against commercial infringers on any copyright, 'orphaned' or not. It will remove or vastly reduce some key protections copyright holders now enjoy, and even when works aren't orphaned, will accomodate corporations and commercial interests.
Is this what we really want to do?
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Permanent ban
