| ZOMG ORPHUN WORKZ BILL!!!1!! |
[Apr. 12th, 2008|08:16 am] |
Update:
I'm not the only one writing about this. Here's a great LJ post by ![[info]](http://l-stat.livejournal.com/img/userinfo.gif) maradydd -- probably even better than this one -- called Six Misconceptions About Orphaned Works.
And at DeviantArt, realitysquared has more helpful commentary.
Snover at Y!Gallery (a yaoi site) posts the letter he sent to Animation World Magazine.
foresthouse calls out Mark Simon for getting almost everything wrong, and links to a paper she wrote in law school about this very topic.
My friends list has exploded lately with people in a panic because of something called the "Orphan Works" bill, which will do all these things (according what various people from my FL have said):
Currently, copyright is effective the minute you create a work. If this passes, however, copyright does not take effect until you specifically register it with the government! In the interim, it is considered an "orphaned work" and can be registered by ANYONE, and you would effectively be in violation of copyright law if you try to make money with your own work after that point.
What I mean is that there will be no more copyrights anymore, and artists won't be allowed to sell their work, while companies and pretty much anyone, can use their work without being penalized for it, since you know, it wouldn't be illegal anymore.
The biggest effects that would "hit home", if passed:
* The entirity of The FuMP (including the Sideshow), and the entire user-created library of YouTube, becomes a set of "orphaned works", as well as anything else released under Creative Commons.
* Microsoft could register the original base Linux and effectively OWN it, and sue the creators for copyright infringement if they continue to try and distribute it. The original Linux is released under GNU Licence, and therefore it, and all the distros, would be considered "orphaned".
* I'm sure you can think of more...
Apparently the main thing that has people upset about this is a column on Animation World Magazine by Mark Simon, called "Mind Your Business: You Will Lose All The Rights to Your Own Art". In this rather overwritten, near-shrieking piece, Simon writes:
As an artist, you have to read this article or you could lose everything you've ever created!
[...]
It is currently against international law to coerce people to register their work for copyright because there are so many inherent problems with it. But because big business can push through laws in the United States, our country is about to break with the rest of the world, again, and take your rights away.
With the tens of millions of photos and pieces of artwork created each year, the bounty for forcing everyone to pay a registration fee would be enormous. We lose our rights and our creations, and someone else makes money at our expense.
This includes every sketch, painting, photo, sculpture, drawing, video, song and every other type of creative endeavor. All of it is at risk!
If the Orphan Works legislation passes, you and I and all creatives will lose virtually all the rights to not only our future work but to everything we've created over the past 34 years, unless we register it with the new, untested and privately run (by the friends and cronies of the U.S. government) registries. Even then, there is no guarantee that someone wishing to steal your personal creations won't successfully call your work an orphan work, and then legally use it for free.
In short, if Congress passes this law, YOU WILL LOSE THE RIGHT TO MAKE MONEY FROM YOUR OWN CREATIONS!
[...]
Do you know who owns Corbis? Bill Gates. He doesn't do anything unless it can make a huge amount of money. Helping you lose the copyright to your art is big business for Gates.
For years we've heard of Hollywood fighting with China to protect copyrights and stop the pirating of DVDs. Our government has worked with the studios to protect their investment.
Our government is NOW WORKING AGAINST US by allowing our own fellow citizens TO STEAL OUR CREATIVE WORKS.
[...]
It gets even better. Anyone can submit images, including your images. They would then be excused from any liability for infringement (also known as THEFT) unless the legitimate rights owner (you) responds within a certain period of time to grant or deny permission to use your work.
That means you will also have to look through every image in every registry all the time to make sure someone is not stealing and registering your art. You could actually end up illegally using your own artwork if someone else registers it. DOES ANYONE SEE A PROBLEM WITH THIS?
Yes, indeed, nothing says well-thought-out legal argument like randomly typing CERTAIN WORDS in all caps to SHOW JUST HOW IMPORTANT THIS ALL IS.
I have to admit that right off the bat I was skeptical about any article which makes the claim -- about itself, the article you are currently reading -- that "you have to read this article or you could lose everything you've ever created!" Thank goodness I've read the article now, and I don't have to worry about losing everything! Whew.
Most of the information in Simon's column seems to come from a single source: Brad Holland and the Illustrators' Partnership of America.
And they certainly sound reputable, from the name alone. But it's always important to consider the source and ask yourself who they are. I honestly have never heard of them -- although that's not surprising -- so I did some googling. Holland is a former Playboy and Penthouse illustrator, and the organization describes itself thusly:
Illustrators' Partnership is a non-profit organization dedicated to creating a mechanism to professionally administer collective management of individual illustrators’ rights, respects the rights of individual creators to determine how the collective rights of their works are managed, and supports upholding the highest ethical standards for the collection and distribution of reprographic royalties.
That whole part about professionally administering collective managements of rights, I guess, is what makes me a little dubious of their strong involvement in this fight; do they just feel that it's some sort of challenge to their own goals and aims?
On their site, IPA describes their organization as a new opportunity for artists:
Why?
Every time you hear "Satisfaction" on the radio Mick Jagger makes more money. That's not because he's so smart, but because years ago, others were. A century ago, songwriters had to produce a steady stream of songs to make a living. They sold their works outright to sheet music publishers, then watched in frustration as middlemen got rich from their hits. Broadway composers also had no way to monitor the use of secondary rights to their music. Then came the phonograph and the radio, and what had once been a secondary market for songs became a new primary market. So in 1914, a few composers and music publishers banded together to form ASCAP (The American Society of Composers, Authors and Publishers). In 1940, others formed Broadcast Music, Inc. (BMI). Today these collective rights organizations are dominant market forces, licensing music and collecting and distributing royalties for the benefit of their members.
The Internet, like the phonograph and radio of the past, arrives with great promise for illustrators. The information revolution offers us a new opportunity to better serve our existing customers and to develop new secondary markets for our works. But like the technological revolutions of the past, the Internet also arrives with great perils for illustrators. Commercial stock houses are harnessing these technologies to their own advantage, leaving artists out in the cold. The contemporary stock and clip art business is designed by middlemen for their own profit. Stock houses sell art at steeply discounted prices, eroding our primary markets. Following the easiest and cheapest business model, these companies are good at marketing art but lack the talent to produce it. By contrast, artists have the talent to produce art but to date lack a competitive business model for the information age. To respond to these fundamental changes, many artists believe that the time is right to organize a trade association of our own.
Incidentally, if you are an artist yourself, you can join their trade association for $200 a year, if you meet these requirements:
Annual dues are $200.
General membership in the IPA is available to freelance illustrators who have produced five (5) commissioned illustrations published within a one (1) year period, or eight (8) commissioned illustrations published in a two (2) year period.
1. Periodicals: Periodicals of general circulation readily available on newsstands regionally or nationwide such as a regional publication, major trade publication, major consumer publication, or major Internet magazine.
2. Books: Jacket or interior illustrations published in a book by an established American publisher.
3. Advertising, Promotional and Product: Illustrations for advertisements, promotions, collateral pieces, merchandise or in-house publications for a client producing a nationally or regionally distributed product or service.
4. Animation, Film and TV: Illustrations created for or distributed by an established American film studio or appearing nationally on television (network or cable)
Why am I bringing up details about this organization? Because just as Mark Simon invokes the scary names of "Microsoft" and other frightening "major" groups, who mysteriously go unnamed, it's also important to consider the aims and goals of the group serving as Simon's source. Here's what he says about those mystery associations:
Some major art and photography associations, or I should say, the managers of the associations, support this bill. The reason they support it is that they will operate some of the registries and stand to make a lot of money. Some have already been given millions of dollars by the Library of Congress. Follow the money and you will see why some groups support this bill of legalized theft of everything you have ever created.
FOLLOW THE MONEY! He should have put that in capital letters.
Sprinkled through Simon's article, of course, are frequent exhortations to listen to his podcasts.
If you don't like to read long articles, you will miss incredibly important information that will affect the rest of your career as an artist. You should at least skip to the end to find the link for a fantastic interview with the Illustrators' Partnership about how you are about to lose ownership of your own artwork.
[...]
Spider-Man comic artist Alex Saviuk is also concerned about the loss of copyright protection. "When I found out all the negative aspects of the new legislation, it would almost behoove us to want to do something else for a living," says Saviuk. "If we would have to register with all the different companies, we would never be able to make a living."
"It would be impossible for me to register all my art," continues Saviuk. "It would put me out of business."
You can listen to my complete interview with Alex online.
[Side note: It's kind of amusing to use as a source someone whose best-known work was all done as work-for-hire. It's also worth noting that Simon doesn't actually speak to anyone with legal training or expertise as sources for his column. --Kynn]
[...]
AUDIO INTERVIEW LINK
I have recorded a fantastic interview with Brad Holland of the Illustrators' Partnership regarding this bill and what it means to us as artists. Please listen and learn more about how you may lose ownership of all your art and photos. This article and the recorded interview are available for anyone to use in print or online. Please forward this information to every person and group you know so that we can work together and protect our creations and livelihoods.
Of course, it would be cynical of me to suggest that over-the-top language and ODDLY CAPITALIZED RANTING makes for good links to get one's interviews listened to and one's columns read; I am sure that Simon really does think there's an imminent, immediate danger requiring ACTION on the part of readers to contact their congressmen.
Is this actually the case, though?
Well, we could look up the bill and check.
As per Mark Simon's column, and the information on the Illustrators' Partnership web site, the H.R. bill number in the house is ...
Oh, wait.
They don't list a number for the bill. Anywhere. Nobody does.
Why?
Because there is no bill before Congress that enacts any sort of Orphan Works Act.
Repeating that:
There is no bill before Congress that enacts any sort of Orphan Works Act.
There was a bill in 2006, called the 'Orphan Works Act of 2006' (H.R. 5439), introduced by Rep. Lamar Smith (R-Texas) on May 22, 2006, with no co-sponsors. H.R. 5439 was introduced in the House Judiciary Committee, which assigned it to the Subcommittee on Courts, the Internet, and Intellectual Property. The subcommittee passed it back up to the full Judiciary Committee with a voice vote.
The full committee did nothing with the bill and it died in committee.
The Orphan Works Act has not been reintroduced during the 2008 congressional session.
Will it be? Possibly.
What will it say? Nobody knows yet -- Illustrators' Partnership admits as much in an update on their web site.
And yet you still have Mark Simon, exhorting everyone to immediately contact all of their elected officials:
Contact your Senators, Representatives, Governors and State Legislators: http://www.usa.gov/Contact/Elected.shtml
[...]
Contact your local papers and send them this article. I give you permission to do it. Local papers like to write local stories. When you tell them about it, make it personal. Allow them to run samples of your art with the article. (It then becomes PR for you and they want great art in their stories. It's a win-win) Tell them how this bill will affect you and your business and my article supports your argument.
You can also call your local TV station news desk and suggest this as a story and that they can use your art. I will be glad to be interviewed with you if you like.
Call the radio stations in your area. They look for local stories too. Make it personal and they will pay attention. Again, I will be happy to be interviewed in a conference call with you if you like.
All this for a bill that didn't even get a full committee vote, let alone a House vote, in 2006 and which hasn't even been introduced yet? (And is Simon really politically naive enough to think that you should contact your state legislators and governor about a Congressional bill which doesn't exist?)
Kind of telling, though, that talking to your local paper "becomes PR for you and they want great art in their stories. It's a win-win." One might be tempted to think this is more about the PR, but that would be uncharitable. With the intensity of his hysterics, it's fairly obvious that Simon is a True Believer in the Cause.
One more thing about Mark Simon's column -- he includes what he says are notes from Brad Holland about a "recent meeting:"
Do you think the U.S. Copyright Office is here to protect you from this legislation? Think again.
Brad Holland of the Illustrators' Partnership shares his notes from a recent meeting with David O. Carson, general counsel of the Copyright Office.
Brad Holland: If a user can't find a registered work at the Copyright Office, hasn't the Copyright Office facilitated the creation of an orphaned work?
David O. Carson: Copyright owners will have to register their images with private registries.
BH: But what if I exercise my exclusive right of copyright and choose not to register?
DOC: If you want to go ahead and create an orphan work, be my guest!
This cavalier and disrespectful dialogue should have you seeing red. Who the hell does he think he is? Carson should be fired and RUN OUT OF WASHINGTON!
Wow, what a jerk that Carson is! He outta be BEATEN AND LEFT TO DIE IN THE HOT DESERT.
Now, of course, there's no quote from Carson responding to Holland's notes from this recent meeting. One might almost think that Mark Simon didn't even bother to check with the General Counsel of the Copyright Office before calling for him to lose his job.
Oh, and how recent was this meeting? Well, let's see. David O. Carson hasn't been the General Counsel of the Copyright Office since the end of 2006. Tanya Sandros is the current General Counsel, and Carson is the Associate Register for Policy and International Affairs now.
Maybe that's why this "recent meeting" has no date, location, reason for the meeting, or any other information that would allow us to place it in context -- because it's at least a year and a half old. Funny that Simon didn't mention this before calling for Carson (a 1997 Clinton appointee, despite blogger claims to the contrary) to be RUN OUT OF WASHINGTON.
And in conclusion...
I'm not saying that there's absolutely nothing interesting in this issue, but I do think that Mark Simon's incendiary column, and the reactions based upon it, have clouded the issue far more more than they've shed useful light.
The "orphan works problem" isn't just something dreamed up by evil corporations to steal your vacation photographs. It's an actual problem faced by academics, librarians, and others that the Copyright Office has been attempting to deal with for some time. In 2006, they released a report on orphan works which I believe is worth reading for background information, even if you don't fully agree with their conclusions.
Lawrence Lessig -- a name which should be familiar to many, as he's a law professor, founder and CEO of Creative Commons, and EFF board member -- didn't fully agree with the Copyright Office back in 2006, mainly because he championed the Public Domain Enhancement Act, which was opposed by the MPAA. (Read the Wikipedia article for more, BTW.) Lessig has also posted a video (in 2007) explaining what the problem is with "orphan works", from his perspective.
Note: Lessig's opinion is that H.R. 5439 didn't go far enough in making it easier to use presumed orphans. He calls it "crumbs," not some kind of serious threat to creative rights and justice that will destroy Creative Commons.
Jerry Brito, another lawyer, critiques Lessig's proposal and finds it wanting; Brito is the co-author of a paper examining the orphan works problem. Brito also wrote, in 2006, about orphan works here, here, here, and here. He specifically responds to an Illustrators' Partnership comment in this post.
The American Library Association -- an organization I've heard of (unlike Illustrators' Partnership), and whose stances I generally respect -- supported H.R. 5439 in 2006.
I'm not saying you have to agree or disagree with these lawyers or librarians. Nor am I saying you shouldn't contact your elected officials if you feel the need to do so, on any topic you like.
I am saying, however, to exercise some caution in taking someone's incendiary column as gospel. Do your own research; demand dates for quotes, and fair reporting that presents both sides of an issue and lets you make your own decisions. |
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