Tuesday, October 07, 2008

Orphan Works Bill - Not Dead Yet


An Unprecedented Grassroots Response


Thank you to everyone who wrote, phoned and faxed Congress during the last hectic weeks. Speaking virtually with one voice, artists have rejected the Orphan Works Act.

Does that mean it's dead? No. Far from it. Lobbyists will continue to promote it, this Congress may yet find a way to pass it, and if not, it will be back when the next Congress convenes in January.

So what happened last week and what does it mean?

All week we'd been getting assurances from various sources that the Orphan Works bill was dead for this session. Experience suggested we not bank on that. Vigilance was the word last Thursday night.

Then, as if following the previous week's script - with Congress struggling to pass the bailout package, with Congressional offices closed and a televised debate set to start - we suddenly got word from a reliable source that the House leadership had decided to try moving the bill that night. Minutes later we got a confirmation from our lobbyist on Capitol Hill. We put out our first Alert.

All night Thursday and throughout the day Friday we and our colleagues continued to call the offices of key members of the House Judiciary Committee.

Their legislative aides gave us conflicting reports. Some assured us the bill was not on the calendar. Others confirmed that House and Senate leaders were trying to reach a compromise. Others acknowledged that the bill could be added to the calendar once an agreement had been reached.

By mid afternoon Friday the bill hadn't passed and we received word from our lobbyist:

"No leadership decision on adjournment time yet . . . will be forthcoming . . . if they don't adjourn sine die today (and they won't), the Judiciary Committee Chairman, the Speaker and the Whip could, indeed, bring something like that back during a Lame Duck [session], if there is one [after the elections in November]."

So once again, vigilance is the word.

Catch 22

What many people don't realize is that true opponents to the Orphan Works Act have had to labor under a Catch 22.

In 2006, when the bill was first introduced in the House, the then-Chairman warned that any group which opposed it would be "ignored" and "left behind." Accordingly, only interest groups that agree to support the bill without fundamental changes have been allowed a voice in its drafting. Catch 22.

This is why the House bill has grown into a complicated piece of legislation. In addition to the databases where copyright owners would have to register their work, the House bill calls for the creation of a privately owned Infringers' archive, sanctioned by the Copyright Office, where infringers would file a Notice of Intent to infringe works.

But a database where infringers can register their paperwork won't protect your work - it can still be infringed. In fact, as a for-profit enterprise, the Archive will be in business to promote infringements. Its inclusion in the bill will simply give middlemen a chance to create the Archive, cutting themselves in as additional beneficiaries of the legislation.

As a result of this Catch 22, true opposition to the bill has had to come from the grassroots. We've had to fight against it from the outside. And as a cottage industry, we don't have the lobbying resources of Big Internet firms and others.

Last spring we were warned not to oppose the bill at all because we'd be "rolled over" if we tried. But since then, more than 75 professional organizations have come together to oppose it. This represents more than half a million rights holders - and the number is growing daily as more people find out about it. This grassroots response has been unprecedented in the history of our field.

Where do we go from here?

The problem with this legislation remains its central premise: It creates the public's right to use your work as a default right, available to anyone whenever you fail to make yourself sufficiently available for them to find.

This is a radical change to the way our government views private property. And we cannot see surrendering the exclusive right to the work we create to have a "seat at the table" of those dismantling that right. So, as we extend our most sincere thanks to all of you for your quick and heartfelt responses over the last weeks we hope to build on that momentum in the weeks ahead.

For the next month, lawmakers will be home campaigning: every member of the House is up for reelection. This means it would be the time for artists in each district to schedule a personal appointment with their representative. Write them and fax them at their home offices. Meet with them if you can. We'll post talking points on our blog: http://ipaorphanworks.blogspot.com/

Tell them that you'd support a true Orphan Works bill, and refer them to the Amendments submitted to the House Subcommittee on July 11 by the Illustrators' Partnership, Artists Rights Society and Advertising Photographers of America. http://ipaorphanworks.blogspot.com/2008/07/hr-5889-amendments.html If the real goal of this legislation is to benefit libraries and museums, our amendments suggest a precise way to do it.


Over 75 organizations oppose this bill, representing over half a million creators.

U.S. Creators and the image-making public can email Congress through the Capwiz site: http://capwiz.com/illustratorspartnership/home/ 2 minutes is all it takes to tell the U.S. Congress to uphold copyright protection for the world's artists.

INTERNATIONAL ARTISTS please fax these 4 U.S. State Agencies and appeal to your home representatives for intervention. http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00267

CALL CONGRESS: 1-800-828-0498. Tell the U.S. Capitol Switchboard Operator "I would like to leave a message for Congressperson __________ that I oppose the Orphan Works Act." The switchboard operator will patch you through to the lawmaker's office and often take a message which also gets passed on to the lawmaker. Once you're put through tell your Representative the message again.

If you received our mail as a forwarded message, and wish to be added to our mailing list, email us at: illustratorspartnership@cnymail.com Place "Add Name" in the subject line, and provide your name and the email address you want used in the message area. Illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses.

Please post or forward this message to any interested party.

No comments: