In the hustle and bustle of Friday night’s deliberation of the $700 billion bail-out plan in the United States Senate, another bill passed through without much knowledge of the Senators themselves. The S. 2913 Shawn Bentley Orphan Works Bill looks to “limit the remedies in a civil action brought for infringement of copyright in an orphan work” as stated on the Congress activities tracking Web site govtrack.com. The bill passed via a method called “hotlining.” Hotlining is a method of voting on a bill where the Senate Majority and Minority leaders use a system of special phone lines installed in each office and give a specific amount of time to object to the bill. If no one objects, the bill passes.
What the Orphan Works Bill does:
Anyone can use copyrighted material (songs, photos, articles, etc…) as long as:
1) The use is without commercial advantage and is educational, religious, or charitable in nature.
and
2) The creator is unknown, or if the creator is known, they provide attribution (acknowledgment) of the creator.
and
3) The infringer attempts “in good faith” to identify and contact the person.
The bill also directs the U. S. Register of Copyrights to make sure that databases are available that facilitate searching for copyrighted material.
For the sake of simplicity I will explain this bill in the context of being a photographer since that is my background. But this bill applies to all copyrighted material: music, visual art, written word, etc… Even a vacationer’s photos on Flickr or a young band’s first track on MySpace apply to this bill as anything you create is inherently copyrighted regardless of your attempt to protect it with the copyright symbol ever since the 1989 Berne Convention Implementation Act which makes anything you create be copyrighted automatically.
Who this bill helps:
There is some rational behind the recent passing of the Orphan Works Bill, but it is minimal. The argument is that some works of art have lost their creators and are now considered “orphans.” Museums, archives, nonprofit educational organizations, libraries, and public broadcasting entities all provide an invaluable service to the public by bringing works of art into the public eye. Photos that may have not been seen, can be appreciated because of their effort.
Who it hurts:
This bill fails in its ability to protect the creators of the art. In fact, it reduces the security many content producers rely on for the sustainability of their business.
Supporters of this bill want it easier for larger institutions to use copyrighted material with limited retribution. Copyright constraints do not allow the use of these works of art to be used in fear that someday the long lost creator, or a representative of that creator, could appear and sue the infringer.
With the exception of the Second Amendment in the U. S. Bill of rights, the right to keep and bear arms, all constitutional rights require nothing of the citizens to deserve these rights. You do not have to sign up for your right to free-speech. You do not have to register for your right to a trial by jury. This bill requests the development of a database of copyrighted material. This would lead to the assumption that copyright is not granted automatically. All creators would feel the need to register their work or else the material could be treated as though it were in the “Public Domain” if the infringer is unable to identify or contact you.
Why not let the copyright creator be hurt by their own inability to market themselves? If you find a work of art in which the creator is unknown, then isn’t the creator the person who would be most damaged, and not the public? As a photographer I want people to enjoy my work. I want people to understand what is going on in their community. For this reason, I work for a newspaper which represents and protects my work, but more importantly, distributes the image to over a million readers every week.
If a photographer fails to market themselves appropriately, then let their work not be seen. It is unfortunate that the public may miss out on these pictures, but isn’t the possibility of the abuse of unregistered photographers more dangerous? If the government cannot guarantee the safety of a creator’s product, then the artist would not distribute it on the internet in the first place, reducing the amount of eyes which see their work, thus defeating the sole purpose of this bill.
What this means for you, the reader and the amateur and professional photographers:
One of the purposes of this Pictures blog is to show readers some photos that did not get published and normally would not have been seen by the public in a light-hearted tone. As the photography intern, I get to see some amazing work done by some very well-known photographers that the public never gets to see. This blog is your pass into the inner-workings of the St. Louis Post-Dispatch photo department. Thankfully this blog is hosted on the Post-Dispatch Web site which keeps record of the posts, but more importantly is heavily viewed by the public. If a large institution were to use a copyrighted picture from the Post-Dispatch or this blog, someone would find out.
But for the photographer who is starting out on his or her own, this bill puts them in a dangerous position. Networking through blogs, and Web sites such as Sportsshooter, or even Facebook, is imperative for finding work and expanding your abilities. If the consequence of copyright infringement were to reduce or evaporate entirely, then freelance or beginning photographers would have a very tough time protecting their work. All photographers have to start somewhere and rely on copyright protection.
When Senator Orrin Hatch (R-UT) introduced the bill he said, “thousands of artistic creations around the country are effectively locked away in a proverbial attic and unavailable for the general public to enjoy because the owner of the copyright for the work is unknown.”
This may be an unfortunate truth. But the possibility of stifling of creative people in every artistic spectrum is too great. What would the museums and libraries have to show if this work was not created or distributed by the artist in first place?
References:
Summary and full text of S. 2913: Shawn Bentley Orphan Works Act of 2008 on www.govtrack.us
http://www.govtrack.us/congress/bill.xpd?bill=s110-2913
Senator Orrin Hatch (R-UT) speech about the Shawn Bentley Orphan Works Act of 2008 on www.govtrack.us
http://www.govtrack.us/congress/record.xpd?id=110-s20080428-24&bill=s110-2913
Roll Call article by John Stanton, “‘Hotlined Bills Spark Concern” on Sept. 17, 2007
http://coburn.senate.gov/public/index.cfm?FuseAction=LatestNews.NewsStories&ContentRecord_id=19c889c6-802a-23ad-4625-5723eec5b7f3&IsPrint=true
United States Archives transcript of BIll of Rights
http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html
United States Copyright Office
http://www.copyright.gov/circs/circ03.html
National Press Photographers Association article “Orphan Works Next Steps In House” on Sept. 29, 2008
http://www.nppa.org/news_and_events/news/2008/09/orphan03.html
Cornell University Law School Berne Convention for the Protection of
Literary and Artistic Works on www.law.cornell.edu
http://www.law.cornell.edu/treaties/berne/2.html