A lot of people are flooding furry forums with rants about the Orphan Works Act of 2006. Obviously, as the name of the bill states, this is hardly a new bill. Following an article that was published two years late by an animation magazine, a great deal of people are now aware of this bill, long after the time for public comment expired. What they are not aware of is what the bill actually would do. It is hardly a bad thing, and it may even protect many of the artists who already display their work on deviantART, since I see a lot of trade dress and well-known characters being used in furry art that are not owned by the creator (although, much of this should already be covered under the fair use provision, especially anything satirical in nature). Being someone who has studied this topic in considerable depth, I am going to share a couple of articles I have written relating to this. I am posting these because I think people need to be better informed about something before they make a decision. To be told "this is bad, trust me" and to just believe smacks an awful lot of Britney Spears saying, "I think we should all just trust our president in every decision he makes."

The most recent was an editorial for SLNN and can be found here:

[link]

Here is a scholarly article I wrote in 2006 (when this bill was proposed) specifically on the topic of Orphan Works:


Orphan Works
Exploring Bill H.R. 24
and its implications on copyright

House of Representatives (H.R.) Bill 24, what is more commonly referred to as the Orphan Works bill, is creating quite a controversy. The bill, still pending in Congress, would limit damages to be awarded to copyright holders as long as the copyright violator made a “good faith” effort to obtain permission to use the work. (Lang, 2006; Reznicki, 2006). The intention behind the bill is “to encourage the preservation and restoration of copyrighted works for research, scholarly, and educational purposes.” (109th Congress, 2005, p. 1). As with many bills pending in Congress, the good intentions may vary quite a lot from what this bill would in fact do: lessen the penalty for plagiarism. Regardless, this bill is not without its merits. This article will explore both sides of the debate and seek to clarify the implications of H.R. 24.
The Need for “Orphan Works”
Several media reform advocates have called for some change in policy regarding copyright as they see the current laws as hindering cultural production and restricting the use of raw materials of democratic culture. According to Professor Siva Vaidhyanathan (2005), “the trend toward privatization of everything ― melodies, genes, languages, public space ― means an inevitable clash of economic values against the values of free speech, creativity and shared resources.” However, this view is not confined to media reform activists. On the H.R. 24 public comments page on the Copyright Office Web site, many academics have voiced their concerns about the current copyright laws, specifically how it relates to disseminating works online through systems such as University of Wisconsin-Stevens Point’s Virtual Reference Library.* While most of the comments on the site were posted by those in academia, even spokespeople from groups such as the Motion Picture Association of America and Professional Photographers of America agree that the current laws could be improved upon. (U.S. Copyright Office, 2006).
History of Orphan Works
The push for “orphan works” legislation is largely attributed to one media reform advocate: Stanford law professor, Lawrence Lessig. Professor Lessig, an advocate of what he calls “remix culture,” has joined the fight for legality of peer-to-peer content distribution and the creation of “sampling licenses.” (Koman, 2005) Defending this “remix culture,” Lessig sites the Progress Clause of the Constitution which states that the purpose of granting copyright is “To promote the progress of science and useful arts.” (Evans, 2004) In this “remix culture,” written communication consists of much more than mere text, Lessig argues, it consists of snippets of music, film and images. According to Lessig this is the main purpose for changing current copyright law; the realization that with elements from “orphan works,” new forms of “useful arts” can be created. (Koman, 2005)
One example of a product of the “remix culture” can be seen with culture jamming. This act consists of taking a current mediated message, such as an advertisement, and either altering it in a satirical way or deconstructing it to illustrate social relevance that may not have been intended by the creator. While people may take issue with a billboard that has been tampered with, they may consider a PBS documentary that is made for the same underlying purpose to be a “useful art.”
Professor Lessig has taken an active role in the cases that deal most directly with orphan works: Eldred v. Ashcroft and Kahle v. Ashcroft. (Koman, 2005; Evans, 2004). In October of 2002, the Supreme Court of the United States began hearing the case of Eldred v. Ashcroft. (Supreme Court, 2003, p. 1) Eric Eldred, a retired computer administrator in Derry, New Hampshire, created his own public domain Web site, eldritchpress.com, in an effort to get his daughters interested in classical literature. In 1998, when the Sonny Bono Copyright Term Extension Act was passed, Eldred became furious that he would be forced to wait another 20 years for the next group of public domain books and threatened to commit an act of civil disobedience by posting books that would have fallen into the public domain had this Act not passed. Lessig heard of Eldred’s story and knew that something had to be done, for this was 11th extension of copyright terms within the last four decades. (Evans, 2004) The Supreme Court upheld the copyright extension, but that did not end the fight.
With Kahle, being heard before the U.S. District Court in the Northern District of California, the emphasis is on an “orphan class” of creative work, “work that the author has no continuing interest to control, but which, because of the burdens of the law, no one else can effectively and efficiently archive, preserve, or build upon in the digital environment for a term now reaching almost a century.” (Stisa-Granick, 2005, p.1). Out of this case, which is still pending, sprung H.R. 24, the “Orphan Works Bill.”
An orphan work can take on many different forms. Basically, it is a creative work that can date back as far as 1923, due to the complexity of current copyright laws, that has been orphaned in any number of ways. A couple of ways in which works can be orphaned is if their creators die and their heirs are unaware of the copyrighted work, or if the company that published the work goes out of business. (Carlson, 2005, p. A33). The criteria that will need to be met for one to use an orphan work is that there must be a “good faith, reasonably diligent search” to locate the copyright holder. Given that this has taken place, if a copyright holder comes forth to claim the work, under H.R. 24, the only penalty the user would be required to pay is “reasonable compensation,” not statutory damages. (Pike, 2006, p.18) What becomes problematic is how a “good faith” effort would be determined by the courts.
The Fair Use Litmus
There has been strong support from many in academia regarding H.R. 24.** The key reason for this is the possibility to extend Fair Use to the dissemination of information using digital media. This method of instruction is problematic given current copyright laws that provide specific guidelines for the use of photocopied materials in the classroom. With the use of digital content, such as was seen in McGraw-Hill Companies v. Google, it has become increasingly difficult for academic institutions to control the distribution of materials in a manner that complies with precedents set by the Texaco and copy-shop cases.*** (Perkins Coie, 2006; Pike, G., 2005, p.19) Therefore, it is understandable why many professors and reference librarians support the proposed bill.
Opposition to the Bill
Given the limits that would be placed on damages and the problematic phrase “good faith, reasonably diligent search,” it is easy to see why many creative professionals oppose the bill. Perhaps more troubling is, as Susan Butler of Billboard (2006) explains, “Current copyright law does not require registration or a copyright notice identifying the owner. Many copyright owners are difficult ― and in some cases impossible ― to locate. As a result, potential users have shied away from using certain copyrighted works.” (p.26) Creative professionals agree that the current laws are not perfect, but urge legislators to proceed with caution on this issue. Victor S. Perlman of The American Society of Media Photographers in his public comment on the Copyright Office Web site, asks that there be a requirement for the person seeking to use an orphan work, after conducting a “diligent search” for the owner, to purchase a license for the work. (U.S. Copyright Office, 2006). Lisa Shaftel of the Graphic Artists Guild calls H.R. 24 “…a disaster for visual creators.” (2006) Shaftel’s sentiments were echoed by Jack Reznicki at the 2006 Photoshop World Conference in Miami Beach. In fact, upon scrolling through comments posted by creative professionals on the public comments page of the Copyright Office Web site, it is plain to see that this bill, as it is written, is seen as deleterious to the careers of creative professionals and is only deemed acceptable with some major revisions.
What Lies Ahead
What remains problematic within the bill is the criteria that determines a “good faith, reasonably diligent search.” According to the Copyright Office’s “Report on Orphan Works,” at minimum, the party pursuing the copyrighted work must review the work for any identifying information, review the publishing history of the work, and search publicly available records and resources. (as cited in Pike, 2006, p.18). However, the criteria for “reasonable compensation” is equally problematic. Law professor George Pike notes that a license (as proposed in the public comment by The American Society of Media Photographers) for a commercial use can exceed a price tag of $100,000. Pike asks, “Would that be the potential range of ‘reasonable compensation’?” (2006, p. 19) H.R. 24 begs a lot of questions. Perhaps, most importantly, what should be done about orphan works.
In an open letter to Congresswoman Zoe Lofgren, Lessig states that H.R. 24 does not go far enough, stating that “…the real problem of orphaned works is tied to old works.” (Lessig, 2006) Since both sides of this issue appear discontent with the language in H.R. 24, an alternative bill has been proposed: the Public Domain Enhancement Act (H.R. 2408). This bill would require copyright holders to pay a $1 maintenance fee and file a new registration at the 50 year anniversary of the work and every 10 years following until the copyright expires. Failure to pay the maintenance fees or to file new registration forms would result in the work becoming public domain. (Pike, 2006, p.19) This bill may appear more favorable to the likes of Lessig, but will most likely displease others. The debate continues and orphan works legislation may very well forever change copyright laws.
* University reference librarians have good reason for concern when it comes to current copyright laws. On October 19, 2005, McGraw-Hill Companies, Inc. filed a lawsuit against Google on the grounds of copyright infringement. As part of the “Google Library Project” the online service had been scanning books provided by the University of Michigan in order to make these texts available to the campus. However, Google had also retained copies for its own use. (Perkins Coie, 2006). Regardless, the availability of reference books online, even when limited to an Intranet, is a phenomenon that seems to defy current fair use criteria.
** Many of the comments posted on the Copyright Office Web site regarding H.R. 24 that favor the bill have been submitted by University faculty and staff.
*** A famous case disputed over the criteria of Fair Use was the Texaco case, where researchers at the company photocopied materials from the company library for personal use. Since Texaco is a commercial organization, the act was found not to be fair use. Another famous case disputed over the criteria of Fair Use was the copy shop case, where a commercial copy shop, at the request of educators, created course-pack materials. Because the copies were made for commercial gain, the act was found not to be fair use.




Works Cited
Lang, D. (2006, April 19). Orphan Works Bill Still Pending In Congress. PDN Online. Retrieved April 24, 2006 from [link]

Reznicki, J. Personal Communication. 2006, March 23.

109th Congress. (2005, January 4). Preservation of Orphan Works. Washington D.C.: U.S. Government Printing Office.

Vaidhyanathan, S. Personal Communication. 2005, May 14.

U.S. Copyright Office. (2006). H.R. 24 Public Comments. Retrieved on May 7, 2006 from [link]

Koman, R. (2005, February 24). Remixing Culture: An Interview with Lawrence Lessig. O’Reilly Policy DevCenter. Retrieved on May 7, 2006 from [link]

Evans, L. (2004, May 3). Lawrence Lessig Sees Public Domain Sinking in a Sea of Overregulation. UCLA International Institute. Retrieved on May 7, 2006 from [link]

Supreme Court of the United States. (2003). Syllabus Eldred et al. v. Ashcroft, Attorney General. Washington D.C.: U.S. Government Printing Office.

Stisa-Granick, J., Lessig, L. & Sprigman, C. (2005). Amended Complaint For Declaratory Judgment Civil Case No. C 04- 1127 BZ. U.S. District Court Northern District of California.

Carlson, S. (2005, July 29). Whose Work Is It, Anyway? Chronicle of Higher Education, 51(47), pp. A31-A35.

Pike, G.H. (2006, April). The Problem with Orphan Works. Information Today, 23(4), pp. 17-19.

Perkins Coie, Attorneys at Law. (2006). Internet Case Digest. Retrieved on May 2, 2006 from [link]

Pike, G.H. (2005, June). Academics Test Copyright Law. Information Today, 22(6), pp. 19, 31.

Butler, S. (2006, February 25). Keeping Track of Orphans. Billboard, 118(8), p. 26.
Shaftel, L. (2006). Commentary White Paper on the Copyright Office’s Orphan Works Study report. Graphic Artists Guild: Advocacy Notes. Retrieved on April 24, 2006 from [link]

Lessig, L. (2006). Letter to Congresswoman Lofgren. Lessig.Org. Retrieved on May 7, 2006 from [link]