I got rather sick of all the hullabaloo surrounding S. 2913: Shawn Bentley Orphan Works Act of 2008, so I decided to do some research on my own. I discovered some rather unsettling things about US copyright law in general, and also discovered that while Orphan Works is something that needs to be addressed, it's not the apocalypse that everyone keeps wailing about.

First, current US copyright law with regards to your rights to your works provides very substandard protection. According to the 1886 Berne Convention, copyrights for creative works are automatically in force at creation, without being asserted or declared: an author is not obligated to comply with any sort of formality to obtain copyright protection in countries adhering to the Convention. (See this document for full information regarding which countries have acceded). However, the United States has continued to make statutory damages and attorney's fees only available for registered works, despite acceding to the Berne Union in 1988. (See the Berne Convention Implementation Act of 1988 text for more detailed information.)

In simpler terms, it means that you do technically have all rights to your creative work, but you can't enforce your rights unless you have paid the US Copyright Office to register your work, which is blatant disregard for the Berne Convention.

I won't go into the implications and potential to abuse this problem, but this article well articulates the point.

On to Orphan Works.

First, to clear up some wild, Chicken Little misunderstandings.

Claim: I'll have to register everything I create, or it won't be copyright protected.

Reality: No, you will not. The Berne Convention standards as I articulated above still automatically apply to your creative works. Orphan Works does not nullify previously instituted copyright law.

In addition, there will not be a copyright registry. The US Copyright Office has stated: "In our study of the orphan works problem, the Office reviewed various suggestions from the copyright community. These included creating a new exception in Title 17, creating a government-managed compulsory license, and instituting a ceiling on available damages. We rejected all of these proposals in part for the same reasons: we did not wish to unduly prejudice the legitimate rights of a copyright owner by depriving him of the ability to assert infringement or hinder his ability to collect an award that reflects the true value of his work." [Source, emphasis added.]

Claim: This bill will legally allow anyone and everyone to use whatever artwork they find as they please, only being required to slap the label 'orphan' on it.

Reality: No. People who wish to call a work 'orphan' must clearly and fully document all research undertaken to find the creator. If the research is incomplete or nonexistent, and the creator sues, the perpetrator must provide that proof of research, or they promptly lose their case. This is something called 'affirmative defense', or, less formally, 'guilty until proven innocent'. The defendant is required to prove innocence, which is a switch on the usual procedure that the plaintiff must prove the defendant guilty.

Corporations and copyright-savvy individuals alike will therefore be very unlikely to try this so easily, even if there's a fair chance the work they plan to use is truly orphaned.*

In addition, if a case does go to court and the defendant proves that they did follow the steps set forth in Orphan Works for labeling a piece as orphaned, the Copyright Office still recommends that the defendant should still have to compensate the owner for a reasonable amount.

_{*While it is a deterrent, there's no way to really stop the people that are going to infringe on the work. Some corporations and individuals will steal no matter the risks.}

Claim: Artists will be unable to make a living from their art, because corporations would much rather use free 'orphan' work than actually commission a work.

Reality: Thanks to the affirmative defense described in my last point, corporations will be extremely reluctant to take such risks. Even if something is used under 'fair use', no one knows how a judge will rule the case. The defendant, with the burden of proof, has far more reason to be nervous about potential lawsuits, and will therefore be very unlikely to take the chance.

In addition, there is the issue of actually finding a work that would suit the corporation's needs. If you've ever searched for stock, even at resources as huge as dA or stock.xchng, you're familiar with how difficult and frustrating it can be to find what you're looking for. (Not to mention, the mere existence of such stock resources provides a huge amount of free material for these folks to use. Why risk the complications of an orphaned work when something given away for free will work just as well?) The combination of legal uncertainty and this difficulty finding what's necessary, as well as the not-to-be-underestimated issue of professional reputation, combine to make corporations far more likely to err on the side of caution.

In addition to refuting these misconceptions, there are several reasons to accept the bill. First, there's no real change to the ability to sue for copyright infringement, regardless of whether an artist's work is registered with the US Copyright Office. With or without the bill, the goal of stopping the infringement is of equal difficulty.

Even more, the artist's rights are specifically bolstered in a commercial setting, by actually giving them the advantage in negotiations regarding the continued use of the copyrighted work. The first half of sec. 514 subsection `(b)`(1) defines the research requirements (that need to be proven in court) of those wishing to call a work 'orphaned', and the second half essentially says that if the infringer fails to negotiate reasonable compensation, or fails to pay reasonable compensation in a timely manner, then all the research that would normally limit said compensation would be null and void. That gives the creator a huge advantage, because unless the infringer stops the infringement immediately, the creator's case is already won. If the infringer fails to pay up, then subsection `(b) `(3) in section 514 states: "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." (I haven't been able to find the referenced sections as they're not a part of the Orphan Works text, but it is fair to assume the remedies implied are relatively substantial.) This further strengthens the argument that corporations will avoid orphaned works.

Also, consider one of the main goals of this bill. It was primarily written to allow non-profit and archival use of old work, whether for display or for filing. Museums, under current copyright law, aren't allowed to archive works that are truly orphaned, and documentary filmmakers are unable to use old film clips. This problem also encompasses the issue that crops up when people want to touch up old photos so the details aren't lost, but are refused by photo institutions on the basis of breaking copyright law. The list goes on.

On the other side of all this, Orphan Works definitely does have its downsides:

• With reference to the wonky US copyright law I mentioned in the first part of this journal, Orphan Works could initiate more formalities that conflict with Berne Convention standards.

• Orphan works also lumps the old works which are the true reason for the existence of this bill with newer works. A piece could be a few hours old or a few decades old, and it would make no difference in the eyes of the law.

• The actual definitions of 'orphan work' and 'good faith search' (in reference to the research necessary to call a work orphaned) are very poor, and need a great deal of clarification. With these ambiguities, any lawyer worth his salt can easily justify his clients' infringements based on semantics alone.

• The purpose of the bill was with regards to non-profit use, but it still allows for commercial use (with restrictions). All of the problems articulated are related to this commercial use; I think everyone is okay with the idea that non-profits or individuals use old works in a non-commercial manner. They are not about money; they're about history and the preservation thereof.

• Why muddy the waters further? International copyright law is already a labyrinthe of information. As has already been proven, Orphan Works will cause more confusion and even fearmongering among those who don't have the time, energy or willingness to do the proper research.

In conclusion, because of the potential for abuse and the ambiguity of the wording of the bill itself, I'm personally opposed to its passage. If lawmakers can clean it up and seriously restrict commercial use of orphan works, I'd be happy to see it passed. It is a sad thing that true orphan works continue to deteriorate and go unused and undervalued, and it is noble that lawmakers are attempting to fix the situation. They just need to be more clear about it.

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Further reading:

Shawn Bentley Orphan Works Act of 2008 [Full text]
A Realistic Look at Orphan Works
Berne Convention for the Protection of Literary and Artistic Works
Statement of Marybeth Peters, The Register of Copyrights
Six Misconceptions About Orphaned Works

_{Please correct me if I've made any errors in my conclusions; I'll correct them immediately! I'm still new to copyright law.}