Help Me Save My Business

I need your help. Big business is rewriting the copyright law and if it passes in the House today, I lose everything I’ve worked so hard for. This year has been difficult, but rewriting the law undermines everything: my blood, sweat, tears and the years of design work. The image of Bacchus could become the property of Microsoft, Google or even your neighbor.

I need you to write to your reps TODAY because this bill has been Hotlined.

“In order for a bill to be hotlined, the Senate Majority Leader and Minority Leader must agree to pass it by unanimous consent, without a roll-call vote. The two leaders then inform Members of this agreement using special hotlines installed in each office and give Members a specified amount of time to object – in some cases as little as 15 minutes. If no objection is registered, the bill is passed.”
– Roll Call, Sept 17, 2007

More Hotlining Explanation:

Below is a note from Illustrator’s Partnership with recent info on Orphan Works Bill. Please read and urge our Rep to stop the bill. Links are included and completed w/your Rep’s name.

Thank you. Lisa

Orphan Works: Legislation by Misdirection

The architects of the Orphan Works Act have already placed testaments to the bill on their websites:
Senator Leahy:
Senator Hatch:

They say this “landmark intellectual property bill” will “unlock proverbial attics of copyrighted works” whose owners can’t be found. Is that really what all the fuss has been about?

No. If that were the case, the problems could be solved with a modest expansion of Fair Use. It’s not proverbial closets we fear seeing unlocked. It’s our commercial inventories, which would be exposed to potential infringement.

And while one Senator pointedly writes that the bill “does not dramatically restructure copyright law” (emphasis added), he’s right: it doesn’t “restructure” it. It merely redefines an orphaned work so broadly that it would let users infringe millions of works as orphans on the premise that some might be.

And why, if the bill is only meant to benefit libraries and museums, have the doors been opened wide for commercial usage?

A Fundamental Change to Copyright Law
For us, the saddest of these postings is on the Copyright Office website itself. There, Marybeth Peters, the Register of Copyrights explains that this bill is necessary because the U.S., in trying to harmonize our law with international agreements, has created too many orphans.

But that’s not the sad part. There are orphans. She’s entitled to her belief. And as Register of Copyrights, she’s entitled to lobby for a change in the law. But what’s sad is that the Register, who we’ve respected for years as an advocate for creators rights, has chosen to justify this legislative scheme by mischaracterizing the honest objections that creators have raised in good faith, again and again.

Here’s how she summarizes the objections of the hundreds of thousands of artists, writers, photographers and musicians who oppose this bill:

“Some critics [she writes] believe that the legislation is unfair because it will deprive copyright owners of injunctive relief, statutory damages, and actual damages. I do not agree.”

Well, those are all real issues, but they’ve never been our focus. We’ve made our case clearly, simply and often.

Our objection goes to the heart of the matter. Here it is, as one of us expressed it in his opening statement at the Small Business Administration Roundtable, August 8:

“The bill’s sponsors say it’s merely a small adjustment to copyright law. In fact, its logic reverses copyright law. It presumes that the public is entitled to use your work as a primary right and that it’s your obligation to make your work available. If this bill passes, in the United States, copyright will no longer be the exclusive right of the copyright holder.”

– From “Orphan Works: A Hobson’s Choice for Artists,” by Brad Holland August 8 2008

And in case the point needed elaboration:

“This exclusive right matters to artists for three reasons:
· Creative control: No one can change your work without your permission;
· Ownership: No one can use your work without your permission;
· Value: In the marketplace, your ability to sell exclusive rights to a client triples the value
of your work.

The Orphan Works Act passed by the Senate Friday explicitly voids that exclusive right as expressed in Article 9 of the Berne Copyright Convention:

(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.

(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.

There can be no responsible argument that the Orphan Works Act is consistent with Article 9 of Berne. None.

Simple reason: the Orphan Works Act does not limit exemptions to an author’s exclusive right to “certain special cases.” Case closed.

There are many other reasons to object to this terrible bill: it violates the entirety of Article 9. But we only need to make this single point to show that it’s a radically new copyright law.

Hiding the Rabbit
The key to the Congressional magic act has been to hide an anti-copyright rabbit in an Orphan Works hat while misdirecting attention to a tedious debate about “reasonably diligent searches,” injunctive relief and statutory damages.

Meanwhile the secret of the trick has been simple: redefine an orphaned work as “a work by an unlocatable author.”

This new definition would permit any person to infringe any work by any artist at any time for any reason – no matter how commercial – so long as the infringer found the author sufficiently hard to find.

Since everybody can be hard for somebody to find, this voids a rights holder’s exclusive right to his own property. It defines the public’s right to use private property as a default position, available to anyone whenever the property owner fails to make himself sufficiently available.

This is a new definition of copyright law.

The headline on the Copyright Office website should read:

In the United States, Copyright Will No Longer Be the Exclusive Right of the Copyright Holder.

This headline would at least have the virtue of candor.

On March 13, the Register of Copyrights testified before the House IP Subcommittee. On page 1 of her testimony she said:

“Every country has orphan works and I believe that, sooner or later, every country will be motivated to consider a solution. The solution proposed by the Copyright Office is a workable one and will be of interest to other countries.”

You can bet it will be of interest to other countries, because the copyrights of other countries can now be orphans in the U.S. too. The Copyright Office and the Senate have thrown down a gauntlet to the world.

Write your congressional representatives today and tell them not to follow.

-Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership

Tell the House Judiciary Committee not to adopt the Senate version.

We’ve supplied a special letter for this purpose:

Wikipedia on Orphan Works
The Proposed New Law is a Nightmare for Artists
What Orphan Works Mean to Bloggers

What I’ve Recently Learned
Google has the capability of stripping out all information tagging that we so painstakingly put into place to protect our images.

This is a no-win situation. I’m seriously considering a vocation change. I cannot continue to create if my neighbor is allowed to steal it without ramification.

Update: Tuesday, Sept 30
Make phone calls today, Tuesday & Wednesday to your Reps. Congress is in recess until Rosh Hashanah concludes and the bill could resurface on Thursday.

Friends of Artists | Use this link to send to your congressman or rep

7 thoughts on “Help Me Save My Business

  1. Madam says:

    Lisa, I’m confused. The bill was originally presented in April. As I read it, present copy writes on graphics, sculpture and one other ( can’t remember) will not expire until 2013. The other matters will be put on an electronic database in Jan. 2009. I agree you don’t want to be included in that database but is the problem the need to create an electronic database for all copywrites instead of the present logjam? Or is the concern that individual artists privacy rights will be infringed by this very bill? Do you think today it will ever get out of committee with everyone mustered to vote on the Bailout Bill?Or will the Orphan works Act be an add on to another Bill that no-one sees or reads? Then they are all going home to get ready for the election! They are all over a barrel on that one!


  2. creativegoddess says:

    The bill has been HOTLINED. That means when the Rep receives the fax in his/her office and doesn’t respond within 15 MINUTES, it’s an automatic YES.

    The more we pester the Reps to pay attention to the fax, the better the chance we have to avoid neglect.


  3. Susan Donley says:

    I think hotlining is how it got through the Senate (as I read the post from the Illustrators Partnership blog), hopefully the House takes a little longer. What a bunch of crooks, voting on stuff they haven’t even read — no wonder so much pork goes through those bills!

    Couple things to think about to ratchet up the noise:
    * Remember all HR reps are re-elected in November — good threat!
    * Call their offices, don’t just email
    * Snail mail if there’s time — real letters count more than email or phone.
    * Comment on each others OW blog posts
    * Bookmark blog posts on Digg, Stumbleupon, Delicious, etc.

    I just posted on my blog:

    Let’s keep up the fight!


  4. Bran says:

    I am from United Kingdom, so not directly affected by the US Legislation, but ideas often cross the pond very quickly. Magic Bartender posted your link on Another Art Community.

    As far as the Orphan Works Act, it does seem to drift away as you say from the original intentions of copyright law. The morsl principle being that the creator or author has a right to be associated with the work they have created, hence coming up with the © copyright symbol.

    It is the rapid growth in the internet without anyway of monitoring or controlling the origination of content that has led to all these problems. Infringement is rife even amongst easily traceable works, particulalry in my field (MUSIC).

    If these legislators are determined to push it through, they may succeed. However a long-term view is that unfair laws never last that long, if the law goes against International Conventions it will eventually be overturned.

    So all I can do is offer words of Support and wish you well with your work and future success. Love and Respect. Bran


  5. creativegoddess says:

    Thanks, Bran.

    I know what you mean about unfair laws not lasting -it’s the rampant stealing and disregard that will happen when the law IS set into motion for that period of time.

    I can hear the rabid, salivating dogs at the gate now…


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