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SAMPLE LETTER FOR INTERNATIONAL ARTISTS (and
others who work with images)
Dear _____________________,
I'm writing to urge you to oppose the U.S.
Orphan Works Bills, H.R. 5889 and S. 2913, introduced into the House
and Senate on April 24, 2008. These bills would amend the U.S.
Copyright Law by adding Ҥ 514. Limitation on remedies in cases
involving orphan works.” (Chapter 5 of Title 17, United States Code.)
This new law establishes yet another new defence
to copyright infringement—orphan works. This new limitation on
remedies will be imposed on any copyrighted work regardless of the
national origin of the author of the work concerned.
What is an “orphan work”? It is any copyrighted
work whose author cannot be found after a “reasonably diligent
search”—conducted by the infringer. The infringer decides when he has
met this imprecise test.
The infringer would be free to ignore the rights
of the author and use the work for any purpose, including commercial
usage. The infringed work could be used in any motion
picture—including X-rated—any commercial advertisement, including
political advertising, tobacco, alcohol, pharmaceutical advertising.
The new law also allows the original work to be
manipulated beyond recognition in “mashups”, “remixes” or other
digital manipulations and allows the infringer to claim copyright in
the derivative work without the consent of the owner of the infringed
work.
In order to challenge the infringer’s assertion
of the orphan works defence, a copyright owner must bring a lawsuit in
order to determine if the infringer is actually entitled to the orphan
works defence. The lawsuit must be brought in Federal court in the
United States. The tremendous cost of these lawsuits obviously harms
independent artists who own their own copyrights, artists who reside
outside of the United States, and smaller copyright owners—they cannot
afford to sue to enforce their rights.
This is a radical departure from existing
international copyright law and conventions, as well as normal
business practices.
These bills will have a disproportionate impact
on visual artists because pictures are commonly published without
credit lines or because credit lines can be removed by others. This is
especially true of art published in the Internet Age. And since
unmarked pictures cannot be sourced or dated, works by artists like me
– who live and work outside the U.S. - will be just as vulnerable to
infringement as the work of American artists.
Because visual art is so vulnerable to
orphaning, there is only one way to match an unmarked image to its
author: by relying on image-recognition databases. The Copyright
Office has stated that with the passage of these bills, such
registries will be “indispensable,” and they have stipulated that the
registries must be created in the private sector and run as
commercial, for-profit ventures.
Forcing artists to rely on any form of registry
to protect their work is a violation the Berne Convention for the
Protection of Literary and Artistic Works. This law forbids any member
country to impose registration on a rights holder as a condition of
protecting his copyright. But forcing international artists to rely on
commercial registries in order to protect their work from infringement
– infringement permitted by a law unique to the United States –
violates all norms of international intellectual property protection.
There are many reasons why international law
forbids coerced registration. Before such registries can be
meaningful, all the billions of images currently protected by
copyright must first be entered into them with authorship information
intact. That means that millions of pictures from around the world
which go unmatched will be orphaned, even if the artists are alive,
working and managing their copyrights. This would even be true of
images registered in the databases, but which go unmatched because of
computer errors.
There is no limit on the number of these
registries. The burden of paying for digitization and depositing the
digitized copy with the private registry would fall entirely on the
artists. Most professional artists have created thousands – or tens of
thousands - of drawings, sketches, photos and paintings. This includes
both published and unpublished work. The costs of paying to have all
these works digitized and registered would be beyond their ability.
Yet the Copyright Office has stated explicitly that failure of the
artist to meet this nightmarish bureaucratic burden would result in
his work being automatically “orphaned” and subject to legalized
infringement.
Presumably the Copyright Office and Congress
expects non U.S. artist like me to register all their past and future
art with the new hypothetical U.S. databases, or see my work exposed
to commercial infringement under U.S. law.
These bills will create massive uncertainty in
the markets where visual art is bought, sold and licensed. It will do
this by voiding entirely the exclusive rights of every visual artist
whose work any infringer can lay claim to. Reason: I would be
powerless to stop the unauthorized uses of my art, even in cases where
I would never, or could never, permit those uses. Besides seeing my
work used in objectionable or defamatory ways, this will void existing
contracts already in force between me and my clients. This is an
attack on the principle of art itself, because my exclusive right of
copyright is the only tool I have to assert creative control over my
work and to protect its value in the marketplace.
The U.S. is a member country of the Agreement on
Trade-Related Aspects of Intellectual Property (The TRIPs Agreement).
Article 13 of this copyright-related treaty allows certain
“limitations and exceptions” to an artist’s exclusive right of
copyright. These are codified as a Three-Step Test:
“ Member [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.
The Orphan Works Bills of 2008 have been written
so broadly that their use cannot be confined to true orphaned work.
These bills will violate the Berne Copyright Convention and fail the
Three-Step Test of TRIPs.
Any Orphan Works solution should precisely limit
an orphan work to uses in the cultural heritage sector for
non-commercial purposes, or use by recognized museums and libraries
for preservation and education.
Sincerely,
____________________________________
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