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September 30, 2008
Orphan Works and Emphatic Words
Once again I'm finding myself trying to make sense of something and hoping others can help me out.
I got a pointer from a freelancer friend to a page posted by the Illustrator's Partnership of America. This page contains a harsh critique of The Orphan Works Act of 2008
That name sounded familiar but I hadn't heard it recently, so I went back into the archives and found a Nate Anderson piece on ars, from back in April, that talked about this proposed legislation. Anderson does a good job of summarizing the problem that the bill is trying to solve - if you can't determine the copyright status of a work, what can you do with it? And if you do reuse it, what protection do you have from being submarined?
The idea in this bill is to set up a system of rules that an artist would need to follow; if those rules are followed and a legitimate copyright holder later emerges, the re-using artist can't be sued into oblivion. In effect we get a 'safe harbor' for innocent infringement. The re-user doesn't get free access - he still has to pay license fees to the late-emerging copyright holder. But he would be immunized from large punitive damages.
This sounds like a really good idea to me, and organizations I generally agree with, like Public Knowledge
, have been working on the issue. PK's page on this topic has not been updated since May as of this writing, but their blog entry for today, written by Rashmi Rangnath, addresses the bill as it was just passed, including the improvements in the definition of "diligent search."
So, what is causing the Illustrator's Partnership to use such harsh language? They claim that the bill "goes far beyond current concepts of fair use" and "has a disproportionate impact on visual artists." They use further alarmist language about "forc[ing] artists to risk their lives' work" and they go on and on at some length. Are we sure Jack "Boston Strangler" Valenti isn't writing this stuff from beyond the grave?
Certainly some freelancers are feeling that this reaction is disproportionate. For example, Adam Hutter of the Fractured Atlas Blog characterizes the response as "panicked hand-wringing". He also points out that much of the reaction is factually inaccurate and provides links to the bills for people to read themselves.
Rangnath's blog entry also points out how some of the bill's language has changed in direct response to concerns that were expressed when the bill was first introduced. It's just not clear to me why these changes haven't averted the apocalyptic verbiage from some quarters.
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