The proposed “Orphan Works Act” is a broad piece of legislation that will grant public access to “orphaned” works of artists. It is quickly moving through both the House and Senate, presenting many challenges and economic burdens on artists and small business.

Since 1976, artists could rest assured knowing that their works would automatically be copyrighted. This freed artists from prohibitive, formal copyrighting procedures and costs. It also aligned the US with the copyright laws of most other industrialized countries through international treaties. The Orphan Works Act, however, would force artists to take additional steps to safeguard their works. Moreover, the legislation loosely defines “orphaned works,” encompassing both educational and commercial sectors, opening the flood gates to infringement abuse. The infringer is not even required to prove they legally acquired the right to use the work. Another troubling issue is that the Bill calls for “private databases” to record and store registered works online with no clear understanding how this system would function and the potential costs to the artists. These “private databases” serve the same purpose as private registries. According to international copyright law, the use of private registries is inconsistent with Article 5 (2) of the Berne Convention which prohibits “any formality” as a pre-condition to the enjoyment of full copyright. Note that the drafters skillfully avoid applying the label “private registries.” Furthermore, if the owner of the “orphaned” work does eventually “surface,” the Bill will not cover legal fees.

Here are some helpful links to familiarize yourself with the Orphan Works Act of 2008:

1. Know the basics of the Orphan Works Act 2008. This site will get you up to speed with some of the pertinent, controversial issues surrounding this legislation: http://www.artistsfoundation.org/orphan.html

2. Listen to the interview of Brad Holland of Illustrators Partnership. He talks about how every artist and photographer is impacted by this legislation. http://www.sellyourtvconceptnow.com/orphan.html

3. Click the link below to read the “Shawn Bentley Orphan Works Act of 2008” (House of Representatives). It’s approximately 20 pages of broad legislative writing: http://www.illustratorspartnership.org/orphan-works-bill-2008/The%20Orphan%20Works%20Act%20of%202008.pdf

4. Why is this legislation so problematic? The Artists Foundation has provided 10 Key Talking Points that every artists should know: http://www.artistsfoundation.org/talkingpoints.html

5. Is this legislation really rescuing orphan works? This article offers some possible solutions to the proposed legislation. For example, creating exemptions for old and abandoned works or perhaps applying Canada’s licensing system: http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00272

6. Read The New York Times article “Little Orphan Artworks.” It will give you a brief history of US Copyright law (“opt-in” versus “opt-out” eras of copyright law) and raise your awareness about the legislation’s potentially burdensome “private database” system: http://www.nytimes.com/2008/05/20/opinion/20lessig.html?ex=1211947200&en=dcf3c1149318e375&ei=5070&emc=eta1

7. Read the Copyright Office’s “Report on Orphan Works.” Page 8 addresses the “Diligent effort” requirement. Is there a need for this case-by-case “standard” of review, or would a narrowly tailored “qualified search” rule better serve the interests of artists? http://www.copyright.gov/orphan/orphan-report.pdf

8. The Electronic Frontier Foundation released an article supporting the Orphan Works Act with suggested changes. http://www.eff.org/deeplinks/2008/05/release-orphan-works

9. Last, but certainly not least, read the Boston Herald’s interview with Jim Grace. Sometimes an analogy sums it up best: ‘ “It’s like killing a mosquito with a machine gun,” said Jim Grace of Boston’s Volunteer Lawyers for the Arts.’ http://www.bostonherald.com/business/general/view.bg?articleid=1095637

10. To understand the basics of copyright infringement, as it stands now, watch this video by UCLA Professor Neil Netanel. http://www.artistshousemusic.org/videos/proving+infringement