A Diplomatic Response

In response to the letter I wrote to my Congressman John Linder, I received this blanket email. For those of you who may not be aware, it is very common for political leaders to have the staff draft up some formal response to be given on common topics. While this does not offer much hope, if any, to the community of writers and artists for the legislation NOT passing, it might at least offer some insight into the minds of the congressmen leaning towards passing the bill. Without any further introduction, here is the email:

Thank you for contacting me regarding the protection of so-called "Orphan Works." I appreciate hearing from you.

On April 24, 2008, Representative Howard Berman (D-CA) introduced H.R. 5889, the "Orphan Works Act of 2008." This bill would limit the remedies available for copyright infringement if the infringing party can prove that an unsuccessful, but reasonably diligent search to locate the copyright owner was conducted and the infringing party provided attribution to the owner, if known. The infringing party must also file a Notice of Use with the Register of Copyrights before the orphaned work may be used. H.R. 5889 would provide reasonable compensation to the copyright owner for infringement unless the infringement was for non-commercial purposes by a primarily charitable, religious, scholarly, or educational purpose, and the infringement ceases upon notification. Currently, an amended version of this bill is pending before the House Committee on the Judiciary, where it awaits further consideration.

As you may know, Orphan Works are copyrighted works whose owners may be impossible to identify and locate. In recent years, concerns have been raised that the uncertainty surrounding ownership of such works might needlessly discourage subsequent creators and users from incorporating the works in a new creative effort or making them available to the public.

In response to these concerns, the U.S. Copyright Office conducted and published a study regarding Orphan Works in 2006. The Copyright Office has recommended a solution that will allow an individual the use of a work if that individual has conducted an unsuccessful but reasonably diligent, good faith search for the copyright owner. Should the copyright owner later resurface, they would be entitled to "reasonable compensation," which would be defined as the amount a reasonable, willing buyer and seller would have agreed to at the time the use was commenced. The Copyright Office also suggests that a "safe harbor" provision be included in any Orphan Works legislation. A safe harbor provision would protect the non-commercial use of an Orphan Work by a museum or university, for example, that used such work for a cultural or educational purpose, provided that the infringing entity ceased using the work upon the resurfacing of the copyright holder.

Intellectual property rights reform is both important and necessary. As a general rule, I support Title 17 copyright protections for artists and their original works, but I also believe it is important to strike a balance between that posture and the preservation of fair use rights and practices. As such, I am inclined to support H.R. 5889 or the recommendations by the Copyright Office, as long as they do not take away from artists what is rightfully theirs or limit innovation.

Again, thank you for contacting me. If I can be of further assistance in the future, please do not hesitate to call on me.

Sincerely,

John Linder
Member of Congress

Personally, I think there must be a better way of achieving a "balance between [copywrite protection] and the preservation of fair use rights and practices" than this approach. In my research, I have found that there is quite a bit of support not only on Capital Hill, but even from some elite artists groups. This might be because if you are making a significant amount of money from your work, this legislation might go farther toward securing your rights, but if you are like me and cannot afford to register everything you create, what happens then? And what about the impact on research for students? Has anyone considered this? This may change entirely the ability of the school administrators to punish and/or bring any charges against plagiarizers because of "fair use" laws. I admit that I am not the most well-versed in this type of legislation, so I could be extrapolating on points that might or might not really be issues in the long run, but I remain a concerned citizen on these points. I guess only time will tell exactly how this bill will affect writers, artists, and other creators in the US and all over the globe.