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![[info]](http://p-stat.livejournal.com/img/userinfo.gif) usagiguy | |
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I had heard about the Orphan Works Act, making art theft legal. I am not a lawyer, but basically, if an "infringer" wants to use any piece of art but cannot locate the creator after what he himself decides is a "reasonably diligent search", it is orphaned and is up for grabs. I received this from the National Cartoonists Society yesterday. Part of it has been edited out, as it may pertain to members. "The NCS Board and Stu Rees (NCS legal counsel) are taking the unusual step of urging you to write Congress in opposition to the pending Orphan Works Act of 2008. If enacted, this radical legislation will undermine key elements of your copyright protection. The House and Senate have different versions of the bill, and there are likely to be some modifications, but nothing under serious consideration makes this legislation remotely acceptable. To take action, simply click this link http://capwiz.com/illustratorspartnership/home/and select one of the form letters. We recommend the letter titled “For Visual Artists – Any Image Can Be Infringed”. All you’ll need to do is add your contact information at the bottom of the page and press “Send Message”. It’s as easy as it is important. /s/ Jeff Keane, NCS President On behalf of the National Cartoonists Society /s/ Stu Rees, Attorney for the NCS" The above link also explains how the bills will affect visual artists. Click here to see a copy of Senate version of bill S 2913 The Shawn Bentley Orphan Works Act of 2008: http://www.sellyourtvconceptnow.com/orphan/The_Shawn_Bentley_Orphan_Works_Act_of_2008.pdfHere is the House version of the Orphan Works Act of 2008: http://www.sellyourtvconceptnow.com/orphan/The_Orphan_Works_Act_of_2008.pdf
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From: kynn |
Date: May 10th, 2008 05:59 pm (UTC) |
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Quoting from the URL you cited (emphasis mine): • The Orphan Works Act defines an "orphan work" as any copyrighted work whose author any infringer says he is unable to locate with what the infringer himself decides has been a "reasonably diligent search."HOWEVER. The bill clearly and specifically says who gets to determine what constitutes a "qualifying search" (note that the term "reasonably diligent search" does not appear in the legislation): `(A) REQUIREMENTS FOR QUALIFYING SEARCHES-
`(i) IN GENERAL- For purposes of paragraph (1)(A)(i)(I), a search is qualifying if the infringer undertakes a diligent effort to locate the owner of the infringed copyright.
`(ii) DETERMINATION OF DILIGENT EFFORT- In determining whether a search is diligent under this subparagraph, a court shall consider whether--
`(I) the actions taken in performing that search are reasonable and appropriate under the facts relevant to that search, including whether the infringer took actions based on facts uncovered by the search itself;
`(II) the infringer employed the applicable best practices maintained by the Register of Copyrights under subparagraph (B); and
`(III) the infringer performed the search before using the work and at a time that was reasonably proximate to the commencement of the infringement.
`(iii) LACK OF IDENTIFYING INFORMATION- The fact that a particular copy or phonorecord lacks identifying information pertaining to the owner of the infringed copyright is not sufficient to meet the conditions under paragraph (1)(A)(i)(I). See how I bolded that there? That's who decides, not the infringer. What's more, the House bill -- which your linked page references -- has additional stipulations, including some not found in the Senate version: `(3) NOTICE OF USE ARCHIVE- The Register of Copyrights shall create and maintain an archive to retain the Notice of Use filings under paragraph (1)(A)(i)(III). Such filings shall include--
`(A) the type of work being used, as listed in section 102(a) of this title;
`(B) a description of the work;
`(C) a summary of the search conducted under paragraph (1)(A)(i)(I);
`(D) the owner, author, recognized title, and other available identifying element of the work, to the extent the infringer knows such information with a reasonable degree of certainty;
`(E) a certification that the infringer performed a qualifying search in good faith under this subsection to locate the owner of the infringed copyright; and
`(F) the name of the infringer and how the work will be used.
Notices of Use filings retained under the control of the Copyright Office shall be furnished only under the conditions specified by regulations of the Copyright Office.
`(4) PENALTY FOR FAILURE TO COMPLY- If an infringer fails to comply with any requirement under this subsection, the infringer is subject to all the remedies provided in section 502 through 505, subject to section 412. What do these mean? Part (3) means that if someone is using a work which their search has turned up to be an orphan work, they have to file the use of that work with the Copyright Office. This makes it harder to misuse anyone else's work, not easier, you realize, right? Furthermore, they are making a legal claim that they have engaged in what they hope a court would judge a qualifying search. And part (4)? Says that if you claim you made a qualifying search, in good faith, and you did not? You're screwed, stupid infringer, and the full weight of copyright law comes down on your head, with fines of up to $150,000 and the Orphan Works Act provides no legal safe harbor for you at all. Please, please, read the bill(s). Don't just read Brad Holland's (or Mark Simon's) deceptive rhetoric. |
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