The Orphan Works Act is legislation that changes significantly the way copyright protection works. Below is a sample letter that can be written to your Senator, Congressman and Congressman Lamar Smith asking them to stop this legislation from passing.
To Your Senator, Congressman and Congressman Lamar Smith:
Re: Copyright Modernization Act of 2006/ORPHAN WORKS ACT (previously HR 5439)
Dear ____________: I am writing to you as a resident of _____________________ (insert City, State) and a member of Craft Retailers Association for Tomorrow (C.R.A.F.T.) to emphatically oppose the proposed Orphans Works Act legislation. C.R.A.F.T. is a trade association of craft designers and producers and the galleries that sell American-made crafts. The Orphans Works Act is a significant threat to the American crafts industry. The legislation’s provisions attempt to address the scenario where someone wishes to use a copyrighted expression but cannot find the owner to obtain authorization. Apparently, it is primarily championed by libraries and educators who worry that the fair use defense is unpredictable and that the inability to find a copyright owner discourages new activity. While this may have some limited truth in a very narrow set of circumstances, the Orphans Works provisions have potentially devastating consequences for creators of visual arts and craft, and the members of C.R.A.F.T. are against the adoption of this legislation. The Copyright Modernization Act, including its very troubling Orphans Works Act provisions, are currently in the Judiciary Committee (IP Subcommittee). I urge you to use every means possible not to let the Orphans Works Act provisions ever see the light of day – never let this part of the Act out of committee and never let this part of the Act be enacted: The Orphan Works provisions: • Apply when the owner of the copyright cannot be identified or found, including to works with name attached, • To be shielded by the Orphan Works provisions, before undertaking the otherwise] infringing use, the infringer must (1) perform and document a “reasonably diligent search in good faith” to find the owner, but be unable to find the owner, and (2) provide attribution, • A “reasonably diligent search” must include a review of Copyright Office records and other reasonably available expert assistance and technology, • If the owner later surfaces, the owner has the burden of proving what “reasonable compensation should be, and ONLY IF the infringer fails to negotiate in good faith, can the owner of the copyright recover full costs and attorney fees, • If an injunctive remedy is under consideration by a court, the court must account for harm to the infringer based on the infringer’s reliance on his/her reasonably diligent search to find the owner, • If an infringer changes the copyrighted work so that a new work is created, the infringement cannot be restrained if the infringer pays reasonable [royalty] compensation to the owner and provides attribution. For owners of copyright in visual works, including crafts, there are so many problems with this legislation that a one sheet is inadequate. The worst parts of the legislation follow: • There is no way to search copyright records or to use internet search tools to find visual works, • The would-be infringer (with the least interest in finding the owner) gets to determine what constitutes a “reasonably diligent search” (In fairness, the proposed law does say that the Copyright Office should promulgate “best practices”for searches.), • If the owner has put name and/or notice on the work but the notice is removed (for photographs, for example, cropped before dissemination on the Internet), the infringer may take the position that the owner could not be identified or located, • If a knock-off is imported without the name of the original creator/owner and the infringer copies the knock-off, the infringer can take the position that the owner could not be identified or located, • Current law allows owners to recover the profits of the infringer and, in many cases, attorney fees and costs; under the proposed legislation, it appears that these economic “hammers”are being removed so that owners will have to accept royalty compensation, • Current law allows owners to get injunctions; under the proposed legislation, if the infringer changes the work—even a little, the owner can no longer enjoin the infringement and must accept royalty compensation. This is a terrible piece of legislation for the crafts industry. This is a time when the crafts industry is fighting against the flood of imported counterfeits and knock-offs, and proposed Orphan Works legislation would make protecting copyrighted works even more difficult by shifting burdens, removing remedies and, for all intents and purposes, making injunctive remedies a thing of the past. Thank you in advance for your assistance in preventing the adoption of the Orphan Works Act. Sincerely, _______________________________
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25-Apr-11