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Bullet Point Letter to Congress
by Illustrators' Partnership
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Dear Honorable ______________,
As a constituent and a small business owner, I am writing to express my
grave misgivings about the Orphan Works Act of 2006 (H.R. 5439), now
before the House Judiciary Committee. I strongly oppose this bill.
The Orphan Works Act has the potential to do great harm to those of us who
create intellectual property. It was drafted to allow museums, libraries
and other not-for-profit institutions to legally exploit the creative work
of authors who have died or abandoned their copyrights. Unfortunately, it
would do this by legalizing the infringement of all works - old and
new, registered or unregistered, published or unpublished, domestic and
foreign, managed or abandoned, whenever a work is unmarked so long as an
infringer asserts that he or she has made a “reasonably diligent search”
to find the rightsholder.
This would expose to misuse countless works of visual art because clients
often require artists to omit identifying information from their work, or
because credit lines can be removed by feckless or unscrupulous users. Not
only artists, but industries which license art can be harmed by this carte
blanche license to infringe.
In the interest of brevity, I am enclosing some basic objections I and
other copyright holders have to this bill.
• The Act is written so broadly that its use cannot be confined to
orphaned work situations.
• It would permit an infringer to determine when he or she has made a
“reasonable effort” to locate me even though the infringer would have a
financial interest in not locating me.
• It would be retroactive, which means that work I created under existing
law would be exposed to infringement because I didn’t take steps to
protect my copyrights which the Copyright Act never required me to
take.
• It would expose my work to infringement immediately upon creation, even
though I am alive, in business and managing my copyrights.
• It would place an impossible burden of diligence on me to protect my
work because I will never have the resources to police infringement, which
can occur anytime, anywhere in the world.
• It would remove any meaningful remedies for infringement, even though
the threat of meaningful litigation is the only means I now have to
enforce copyright compliance.
• It would impose on me the burden of proving in court the amount of
“reasonable compensation” I could collect from someone who has infringed
my work as an “orphan”.
• But it would limit “reasonable compensation” to whatever sum an
infringer is willing — or able — to pay.
• It would deny me injunctive relief in situations where the entirety of
my “orphaned” work has been used in a so-called “transformative” work.
• And it would undermine my option to retain or sell exclusive rights to
my clients because neither I nor my clients could ever guarantee that the
work would not be used by others — even for purely commercial
purposes.
• The inability to retain or sell exclusive rights would greatly decrease
the market value of my work because market value is determined by the
licensing potential locked up by exclusive rights.
• This bill would prevent me from restricting certain unwelcome uses of my
art.
• And it could drive my work into low-end markets where I would otherwise
never license my work.
• At present, the law does not allow infringers to claim my work by
infringing it, but this legislation would let them.
• Yet by “limiting remedies” the bill guarantees that the cost of suing an
infringer could exceed whatever sum I might recover in a successful court
action.
• While the bill would limit the amount I could recover from an infringer,
it would set no limits on the amount an infringer could win from me in a
counter suit.
• And while the bill would not legislate “formalities”, it would have the
same effect, because it would require artists like me to rely on marking,
registering and meta-data as a condition of protecting our
property.
• This would violate the Berne International Copyright Convention and fail
the three-step test of TRIPs, which requires that exceptions to an artist’s
exclusive rights should be limited to certain special cases, not interfere
with an artist’s normal exploitation of his work and not prejudice a
rightsholder’s legitimate interest.
In short, the Orphan Works Act fails to properly define the category of
orphaned work and it sets the infringer’s bar of due diligence so low that
it virtually guarantees abuse.
It would force into the courts countless business decisions which should
be made in the marketplace, and create problems which do not now exist but
which would require the expansion of the entire Federal judiciary system to
solve.
For those and other reasons, I ask you to consider the harm this bill can
do to existing businesses and vote against it unless it is amended to do
the following things:
a) Precisely define an orphan work as a copyright no longer managed by a
rightsholder;
b) Precisely define the steps a user must take before infringing a
work;
c) Eliminate the unrestricted use of a copyrighted work in a
“transformative” work;
d) Restrict the use of orphaned works to not-for-profit uses;
e) Restore full remedies for infringement as the only means rightsholders
have to protect their intellectual property.
Respectfully,
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