2 ... 2 ...PK posited Myth #1: The bills would take away copyright protection from every work a visual artist ever created!
The bills do not take away artists’ rights. The bills set a limit on damages for users of a copyrighted work where the copyright owner could not be found, despite a search conducted in accordance with detailed guidelines that the bills lays out. Under these guidelines, lack of identifying information on a work would not be an excuse to use a work. After such a diligent search, in the unlikely event that an owner came forward after the use had started, the user would have to pay him a “reasonable compensation” for the use. The owner would also be entitled to an injunction in situations where the work was not incorporated into a new work. The bottom line is that good faith users are shielded from liability, and owners are paid if they surface.
A Far more accurate take: The bills do take away the right to statutory damages for infringement in the case of false negatives. False negatives are very likely in the case of visual arts and other copyrights as most of the available databases either don’t cover a particular category of copyright at all (such as visual art) or require a metadata search (which has been rejected by many courts, including Judge Patel in the Napster case). The bills do not require “detailed guidelines”, just “best practices” which have yet to be determined and won’t be determined before the law would go into effect (1/1/2009)). (Continued, after the Jump)
PK posited Myth #2: The bills would mandate registration of all visual arts in expensive, private registries.
A Far more accurate take: It is true the neither bill requires a mandatory registration as that would be a clear violation of Berne, NAFTA, TRIPS, WIPO and WTO treaties. The substantive effect of the bills, however, which is what must be considered, is that the likelihood of false negatives increases exponentially if works are not registered in a searchable database. That means that artists must take the risk that if they are not digitizing their entire catalogs they will be orphaned. PK posited Myth #3: Unavailability of statutory damages means that owners cannot get compensated.
A Far more accurate take:What is missing from this “Fact” is that the liability only arises if the user is (a) found by the copyright owner, and (b) sued by the copyright owner. Public Knowledge may not like statutory damages and pejoratively describes the standard of 100 years as “punitive”, but statutory damages are a right of artists that is being taken away by this bill. There is nothing in the current marketplace that would suggest that users intend to behave within the proscriptions of the law. If infringement is this rampant WITH statutory damages, imagine what it will be like WITHOUT statutory damages as a stick. PK posited Myth #4: The bills would institute registration formalities in contravention to international treaty obligations.
A Far more accurate take:The substantive effect of the bills is to require registration and will almost assuredly be found to violate Berne. The registration burden is entirely on the copyright owner—the user is not even required to give constructive notice of the infringement by filing with the Copyright Office—which likely is a violation of 17 USC 205. PK posited Myth #5: Under the proposed new bills, since the entirely of an infringed work can be included in a derivative use, then the copyright of the derivative will amount to a copyright of the original.
A Far more accurate take:There should be no new copyright afforded to a “derivative” without the consent of the copyright owner. These bills change the law as it applies to derivative works, and takes away the copyright owner’s right to consent to any derivative. PK posited Myth #6: Any user could fake a “dilligent search” and use the orphan works limitatin to infringe. Couldn’t a bad actor falsify the records of their search?
A Far more accurate take:It is more likely that many actors (good or bad) will simply lose their records or be unable to prove how they’ve complied with whatever search requirements there are once a copyright owner comes forward. The point isn’t that the “bad actor” will falsify search records, it is that the message of the statute is “search just hard enough not to find the copyright owner”. Since the bill would permit more than one set of “best practices”, anyone—including Public Knowledge--could develop a set of “best practices” for a diligent search that would be worthless if the point is to find the copyright owner. The concern is not that someone will lie to avoid liability, it’s that the bill allows them to steal fair and square because it is so one sided and out of touch with commercial realities. There's a lot of misinformation floating around about these bills. I can't say it enough - READ THE BILLS. Here's the links: ( S.2913 and H.R. 5889). If they don't make sense, re-read them. Try to find loopholes that you yourself could exploit, and then realize that someone somewhere is going to monetize whatever loopholes you find - and quite possibly with your creative endeavors!
Related Posts:
- Orphan Works - A Unique Set of "Myths" and "Facts", (6/2/08)
- Orphan Works and Licensing Exclusivity, (5/23/08)
- What Are the Odds? The Orphan Works Likelihood of Passage, (5/16/08)
- Apathy Gets You NoWhere, (5/15/08)
- Orphan Works - Senate Markup (5/9/08)
- Orphan Works - HIstory in the Making, (5/7/08)
- Speedlinks - Orphan Works Edition, (5/6/08)
- Orphan Works 2008 - A Wolf In Sheep's Clothing, (5/1/08)
- Orphan Works Act = Thieves Charter? (4/29/08)
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