New Bill Legalizes Most Copyright Infringement
Artist Advocate Mark Simon says that a bill in Washington D.C. could in effect wipe out copyright protection for many artists. The Orphan Works Act of 2008 and the Shawn Bently Orphan Works Act of 2008 would give free legal use rights of any photograph, artwork or sculpture that has not been properly registered in government certified private databases.
"Orphan" works are those original creative works that are protected by the term of a copyright, but the copyright holder can not be located. The proposed law appears to be an attempt to locate copyright holders, but Simon says the details make it a virtual free-for-all on the use of creative works.
If the bill is passed into law, any artist who fails to properly register all of their creative works in all of the private sector registries certified by the copyright office will have all of their works orphaned. This means that all of their past, current and future work could be up for grabs and be used legally without permission or compensation.
As written, the bill would make it very easy for photographs and other copyrighted artwork to be used and for the claim to be made that any work is orphaned. The registries will be searchable online electronic databases. In searching for the owner of a copyrighted work, new software will be used to match an image with images that are registered. If a match is made, the search will turn up the artist's name and contact information. So if use of a copyrighted work is desired, the copyright searcher would simply have to run searches on a couple of registries and if no match is immediately found, the work is considered orphaned and can be freely used without any legal problems.
The problem, according to Simon of Sell Your TV Concept Now, is that the software is not perfect and matches will be missed. Additionally, out of the billions of copyrighted images, few will actually be registered in the online registries. Authors and artists simply do not have the time to individually register every single photo, sketch or artwork that they have ever produced and register them in every upcoming online database. The bill creates an impossible situation for copyright holders and actually encourages copyright infringement.
No artwork is safe from legal copyright infringement under the Orphan Works Act of 2008. Famous works of art that are already commonly illegally used will be fair game and completely legal for use if left unregistered in every database. Additionally, every photo or artwork posted or used on the Internet would also become completely legal for use by anyone for anything under the bill. Personal photos could be used in national marketing campaigns without the photographer ever being asked, notified or paid for its use.
The Orphan Works Act of 2008 affects almost everyone, and certainly anyone who has ever uploaded a photo to a sharing service such as Flickr or Snapfish. Not only can these unregistered photos or works of art be used freely, orphan works could actually also be used by someone else in the creation of new works and then the new image or artwork could then be registered and copyrighted by the third party.
The definition of an orphan work under the bill makes almost anyone susceptible to completely legal copyright infringement. When a copyright holder can't be quickly and easily found by the searcher, the artwork and photography becomes legal for use. Anyone registering their works in the online databases can not be sure that they have registered the work in every existing database, or that the software will successfully identify them as the copyright holder of the work. Therefore, if this bill is passed, legal copyright infringement will be commonplace.