I've been reading lately on the issue of copyrights as they pertain to the Red Cross. I've been aware these past few months that the Red Cross has been chasing illegal uses of their logo. Naturally, they've been getting a lot of bad press for doing so. This is, after all, a tremendous departure from their humanitarian mission and even tends to make them look like sort of a bully.
The Canadian branch, at least, of the Red Cross, has vowed to litigate ANY infringing use of the logo.
While I think this general approach may be going too far, I suppose there is some justification for the Red Cross wanting to have more control over its brand. After all, the Red Cross can undoubtedly be held responsible for anything that bears its mark. A red cross on a first-aid kit is supposed to mean that the kit is Red-Cross approved. If a generic brand kit bears a red cross and the materials inside it are not up to standard, the first place the user of the kit will seek damages should the kit fail would be the Red Cross.
This makes for a tough issue.
Recently the Red Cross has been trying to keep its logo from becoming a generic symbol, but it has already been fairly genericized since the Geneva Convention. It was determined that nations under the convention could not fire on anything bearing the Red Cross logo. Medics, medical vehicles and medical tents have borne the logo ever since. In wartime, a soldier could see the symbol and automatically think "medic". This was true no matter what language they spoke or how much they knew about the Red Cross organization itself.
Since this began, people see the symbol, and immediately think "medical". It's natural then, to assume that it can be used whenever someone wants to suggest medicine. This is apparently not the case, though this nearly universal attitude does seem to put the symbol into an unusual status.
People use symbols to communicate every day. When we communicate for broader purposes (publishing) we do our best to use un-copyrighted symbols so we don't get sued for using them. In doing so, we have to be able to determine what is and is not usable, but one will only go so far to look into this. For instance, no one ever checks to see if the letter 'A' is copyrighted, they simply assume it's not. We derive this from the idea that it's a universally understood symbol (to some degree) and has been used to communicate a specific set of sounds for as long as we can guess. People tend to make the same sort of assumption about the Red Cross emblem.
Since as far back as any living person can remember the emblem has communicated 'medicine', so these days, people don't even wonder if this is a copyrighted symbol. Rather, much like the letters of the alphabet, we just assume this is the universal symbol for 'medicine' and use it like any other communication device. Whether people should be sued for that sort of thing is a hard question to answer.
Further, thought of the Red Cross being a copyrighted symbol makes me wonder about some things. for instance, how did they manage to copyright this in the first place? Is the Red Cross logo really the first 'published' use of a red cross? Since the Red Cross logo was based on the White Cross of Switzerland, Can they really copyright it? And, since the Red Cross logo has been in use since 1864 and since copyright is only extended to 70 years plus the life of the artist, would they still hold the copyright? Who is the artist anyway? When someone at the Geneva convention suggested reversing out the swiss flag, did that person become the artist?
Is anyone even asking these questions?
Wednesday, August 6, 2008
Thursday, July 31, 2008
Holy Hotlining, Batman!
I was pretty shocked when I heard about this. A couple of days ago, senate leaders tried to hotline the orphan works bill into passing. Unbelievable!
What is hotlining? It's a process for getting bills to pass quickly and without discussion. It's meant to be used for uncontroversial bills involving simple issues like the naming of post offices and such. Some unscrupulous politicians, however have been using the process to push through more controversial bills and sidestep the opposition.
Here is a link to Senator Jeff Sessions' (R-Alabama) explanation of hotlining and how it's being misused (his article is moslty about an amendment to make hotlining a harder process to stop. This is another issue, but relevant and just as appalling). Here's my condensed explanation:
When the senate majority and minority leaders are agreed on an issue, they can hotline a bill to save the trouble of deliberating for a vote. They send the issue out to senators and it reaches them over a special phone line. A senator may or may not pick up the phone.
If a senator does pick up the phone they will be told which bill is being hotlined and how long they have to put a hold on it. If the senator then doesn't put a hold on the hotline before the deadline, they have consented to the bill. This is always a short deadline, and may be as little as fifteen minutes. The phone can ring at any time, even after hours (which is when it's actually most likely to ring).
If a senator does NOT pick up the phone, they have also consented to the bill (This is why most hotlined bills go through after hours). If no one responds to the hotline, the bill passes.
This is apparently the second time the Orphan Works bill has been hotlined, (I, like most people, was never aware the first) but it was stopped by several holds both times. You would think that after the first hold, it would be clear that this is not an uncontroversial issue and would therefore be immune from being hotlined again, but that's obviously not the case.
This is a highly controversial issue, and it's high time the senate leaders started treating it as such.
What is hotlining? It's a process for getting bills to pass quickly and without discussion. It's meant to be used for uncontroversial bills involving simple issues like the naming of post offices and such. Some unscrupulous politicians, however have been using the process to push through more controversial bills and sidestep the opposition.
Here is a link to Senator Jeff Sessions' (R-Alabama) explanation of hotlining and how it's being misused (his article is moslty about an amendment to make hotlining a harder process to stop. This is another issue, but relevant and just as appalling). Here's my condensed explanation:
When the senate majority and minority leaders are agreed on an issue, they can hotline a bill to save the trouble of deliberating for a vote. They send the issue out to senators and it reaches them over a special phone line. A senator may or may not pick up the phone.
If a senator does pick up the phone they will be told which bill is being hotlined and how long they have to put a hold on it. If the senator then doesn't put a hold on the hotline before the deadline, they have consented to the bill. This is always a short deadline, and may be as little as fifteen minutes. The phone can ring at any time, even after hours (which is when it's actually most likely to ring).
If a senator does NOT pick up the phone, they have also consented to the bill (This is why most hotlined bills go through after hours). If no one responds to the hotline, the bill passes.
This is apparently the second time the Orphan Works bill has been hotlined, (I, like most people, was never aware the first) but it was stopped by several holds both times. You would think that after the first hold, it would be clear that this is not an uncontroversial issue and would therefore be immune from being hotlined again, but that's obviously not the case.
This is a highly controversial issue, and it's high time the senate leaders started treating it as such.
Wednesday, June 4, 2008
Tuesday, June 3, 2008
Victim one: Radio Free Meredith.
As I said before, there are a lot of people opposing the new orphan works act without knowing much about it. I had never seen or heard the term FUD until I began reading about this bill, and now it feels like the buzzword of the century.
That said, there are just as many people if not more supporting the bill without really understanding it. Enough proponents of the bill have discussed the former, now I'd like to talk about the latter, as promised in my previous post.
My first victim is Radio Free Merideth, who presented an article some time ago called Six Misconceptions About Orphaned Works. In it she supposedly dispels six rumors going around about the bill. To give you an idea about Merideth (though no fuel to her credibility) she is cited in a post at Boing Boing sometime later claiming that the orphan works bill DOESN'T EVEN EXIST.
Nonetheless, I've seen plenty of proponents of the bill point to her article, so I'd like to take stab at dispelling some of her dispellings—That is, if you can do that... grammatically speaking.
Point #1 - Meredith quotes a post from Mark Simon saying "There's legislation before Congress right now that will enact major changes in US copyright law regarding orphaned works! We have to act immediately!"
Her retort: "Actually, no, there isn't. Even the Illustrators Partnership admits this, so I don't know where Mark Simon gets this idea."
Counter-argument: Actually, yes there is. And it's being fast-tracked now. The link she pointed to at the Illustrators Partnership (IPA) was an old one, left up by Brad Holland in his haste. Even then, the bill was moving very quickly and being revised for its go at the senate and house. The message was telling people to hold their letters to politicians until the newest version came out. This hold lasted only a few days. By the time her article was written, I believe the bill actually was on it's way to Congress (An astonishingly fast move for a bill to make in a moth's time).
And about Mark Simon contradicting the IPA? The IPA and Mark Simon have kept up one united front in the opposition of this bill since it began.
Her claims, also, that Mark Simon's articles on this are poorly researched is inaccurate. Mark simon was opposing this bill at least since it's first go-around which began in 2003 (That would be the 2006 bill Meredith referred to that was never voted on). He's been researching this extensively ever since and is very well-informed on the subject. He keeps things to the point, and doesn't necessarily explain how he reaches the conclusions he does, so some people think he hasn't thought it out, but he has. He just knows his audience doesn't have time to read drawn out explanations like this one. Brad Holland is a little better about giving details.
Point #2 - And I don't know who she's quoting this time: "If I want the copyright on my art to be recognised, I'll have to pay to register each piece!"
Of course, we know that the bill states that a work doesn't lose its copyrights due to this bill, and of course, this is the defense Meredith cites. If the bill were to work the way it was intended, there would be no problem at all. What the statement is referring to, though, is a loophole. I've explained this loophole in an earlier post, so I'll just reiterate.
The point here is that copyright protection for anything but the most prominent works will be essentially ineffective except when the user of a work is honest and wants to act in good faith. Otherwise, it's not a hard thing to trick your way out of going to court over an infringement or paying for damages. It's just a matter of bluffing the rights-holder. The only time this doesn't work is when you're work is registered. (And that's only if there is only one database to search, this is another problem to work out) So essentially, yes, though registration is "not mandatory" it is the only effective way to protect your copyright.
Point #3 - "If I don't pay to register my copyright, anyone in the entire world will be able to use it for free!"
Meredith's retort: "Nope. There is nothing on the table that suggests that the US will be pulling out of the Berne Convention, which is the international treaty which governs copyright provisions between countries. Marybeth Peters certainly isn't suggesting it."
Counter-argument: Actually yes, but I think people in the US using works from other countries is a bigger concern as far as the Berne Convention goes. While there's nothing in the bill DIRECTLY suggesting pulling out of the Berne Convention, and while Marybeth Peters says nothing about it SPECIFICALLY, this is a legitimate concern. Again, it's a loophole, and it WILL put us at odds with the Berne Convention. True, we're not pulling out of the Convention with this bill, we're just totally screwing up at our attempt to comply with it.
The problem stems from the fact that the user of an orphaned work has no idea who the author is. That's what makes it an orphaned work. Additionally, they don't often know when it originated or where. The "where" is the big issue here, because the rights-holder could be anywhere in the world—Germany, Ukraine, Zimbabwe, Portugal—who knows?
Foreign rights-holders are, in fact, the rights-holders that are hardest to find because it's nearly impossible to catch the trail of a work across international and cross-lingual lines. This bill will, of course, be an American law, and won't change international law, where use of these works will remain illegal. With this in mind, works by foreign rights-holders are going to be used—legally by US standards—illegally by international standards.
Again, this takes us to the fact that just because you don't find the creator, it doesn't mean they can't be found. If you are in the US looking for a German artist, and you don't speak or read German, the search will be nearly impossible and certainly fruitless, while in Germany the artist may even be well known and a snap to find, that is, for a german native who speaks the language.
Point #4 - "Someone else could register the copyright on my work, and use that against me!"
Meredith doesn't go far at dispelling this one, but this is the one valid point she has. It's true, that even with this bill in place, no one can use your work against you. That is, as long as you can prove it's yours. Someone could theoretically register your work as theirs and collect on it until they were discovered, though. They might even get away with it. They can't, however, sue you. They'd be stupid to try because odds are you could prove yourself as the creator and thus prove that they never had a right to register it. Then they'd be busted for fraud.
Still, the thought that someone could register your work and collect on it as long as they don't get exposed is troubling. I know that In the past people have assumed the identity of the rights-holder of work that was not theirs, but I doubt it's easy to do. The advent of a central registry would make it very easy if the real rights-holder isn't registering their work themselves, because that is where an interested party will look first for a match. Just divert the stream to water your own fields and make sure you're long gone by the time the sheriff shows up.
Point #5 - "If I don't track down people who are illegally using my copyrighted works, I'm SOL!"
Meredith's retort: "This is the state of things already"
Counter-argument: Sure, but as it is now, I can deal with them as if they have broken the law, because I know without a doubt that they have. Under the new law, I'm not so sure. Did they perform a good faith search or not? If they say that they did, should I just believe them? If I don't and I'm wrong, I'm out thousands of dollars worth of legal expenses.
Even if they did perform a good faith search, I still have to track them down. It could be as hard to find them as it was for them to find me. If I knew they had broken the law it might be worthwhile to try and find them because I can collect significant damages from them. But if they did everything in good faith, I can only collect "fair market value" which probably won't be worth all the trouble I would go to.
This brings up an ironic dichotomy about this bill. when someone uses an orphaned work, they are searching for the creator to ask for something they are not necessarily entitled to. If they don't find the creator, the law lets them use it anyway. When the artist finds out that the work is being used, they now have to set out to find the person using it. The artist is now searching for the user to collect something they ARE entitled to, but if they don't find the user, they don't get anything.
Point #6 - "Displaying my artwork anywhere means that it automatically becomes orphaned, and anyone will be able to use it!"
Meredith tries to discredit the point using information about what constitutes publication, but never manages to point out how this information is relvant. Publication is certainly not a requisite for something to become an orphaned work. The point, though a little overstated, makes sense. Under the new law, essentially (and despite lawmakers' intentions) this bill would mean that all works are orphaned until proven otherwise. (If you know who the artist is, then the work is proven not to be an orphan)
In effect, anything you post on the web COULD be orphaned no matter how you slice it, since anything you put on the web can be separated from your contact info. So the point is correct, in a way.
That said, there are just as many people if not more supporting the bill without really understanding it. Enough proponents of the bill have discussed the former, now I'd like to talk about the latter, as promised in my previous post.
My first victim is Radio Free Merideth, who presented an article some time ago called Six Misconceptions About Orphaned Works. In it she supposedly dispels six rumors going around about the bill. To give you an idea about Merideth (though no fuel to her credibility) she is cited in a post at Boing Boing sometime later claiming that the orphan works bill DOESN'T EVEN EXIST.
Nonetheless, I've seen plenty of proponents of the bill point to her article, so I'd like to take stab at dispelling some of her dispellings—That is, if you can do that... grammatically speaking.
Point #1 - Meredith quotes a post from Mark Simon saying "There's legislation before Congress right now that will enact major changes in US copyright law regarding orphaned works! We have to act immediately!"
Her retort: "Actually, no, there isn't. Even the Illustrators Partnership admits this, so I don't know where Mark Simon gets this idea."
Counter-argument: Actually, yes there is. And it's being fast-tracked now. The link she pointed to at the Illustrators Partnership (IPA) was an old one, left up by Brad Holland in his haste. Even then, the bill was moving very quickly and being revised for its go at the senate and house. The message was telling people to hold their letters to politicians until the newest version came out. This hold lasted only a few days. By the time her article was written, I believe the bill actually was on it's way to Congress (An astonishingly fast move for a bill to make in a moth's time).
And about Mark Simon contradicting the IPA? The IPA and Mark Simon have kept up one united front in the opposition of this bill since it began.
Her claims, also, that Mark Simon's articles on this are poorly researched is inaccurate. Mark simon was opposing this bill at least since it's first go-around which began in 2003 (That would be the 2006 bill Meredith referred to that was never voted on). He's been researching this extensively ever since and is very well-informed on the subject. He keeps things to the point, and doesn't necessarily explain how he reaches the conclusions he does, so some people think he hasn't thought it out, but he has. He just knows his audience doesn't have time to read drawn out explanations like this one. Brad Holland is a little better about giving details.
Point #2 - And I don't know who she's quoting this time: "If I want the copyright on my art to be recognised, I'll have to pay to register each piece!"
Of course, we know that the bill states that a work doesn't lose its copyrights due to this bill, and of course, this is the defense Meredith cites. If the bill were to work the way it was intended, there would be no problem at all. What the statement is referring to, though, is a loophole. I've explained this loophole in an earlier post, so I'll just reiterate.
The point here is that copyright protection for anything but the most prominent works will be essentially ineffective except when the user of a work is honest and wants to act in good faith. Otherwise, it's not a hard thing to trick your way out of going to court over an infringement or paying for damages. It's just a matter of bluffing the rights-holder. The only time this doesn't work is when you're work is registered. (And that's only if there is only one database to search, this is another problem to work out) So essentially, yes, though registration is "not mandatory" it is the only effective way to protect your copyright.
Point #3 - "If I don't pay to register my copyright, anyone in the entire world will be able to use it for free!"
Meredith's retort: "Nope. There is nothing on the table that suggests that the US will be pulling out of the Berne Convention, which is the international treaty which governs copyright provisions between countries. Marybeth Peters certainly isn't suggesting it."
Counter-argument: Actually yes, but I think people in the US using works from other countries is a bigger concern as far as the Berne Convention goes. While there's nothing in the bill DIRECTLY suggesting pulling out of the Berne Convention, and while Marybeth Peters says nothing about it SPECIFICALLY, this is a legitimate concern. Again, it's a loophole, and it WILL put us at odds with the Berne Convention. True, we're not pulling out of the Convention with this bill, we're just totally screwing up at our attempt to comply with it.
The problem stems from the fact that the user of an orphaned work has no idea who the author is. That's what makes it an orphaned work. Additionally, they don't often know when it originated or where. The "where" is the big issue here, because the rights-holder could be anywhere in the world—Germany, Ukraine, Zimbabwe, Portugal—who knows?
Foreign rights-holders are, in fact, the rights-holders that are hardest to find because it's nearly impossible to catch the trail of a work across international and cross-lingual lines. This bill will, of course, be an American law, and won't change international law, where use of these works will remain illegal. With this in mind, works by foreign rights-holders are going to be used—legally by US standards—illegally by international standards.
Again, this takes us to the fact that just because you don't find the creator, it doesn't mean they can't be found. If you are in the US looking for a German artist, and you don't speak or read German, the search will be nearly impossible and certainly fruitless, while in Germany the artist may even be well known and a snap to find, that is, for a german native who speaks the language.
Point #4 - "Someone else could register the copyright on my work, and use that against me!"
Meredith doesn't go far at dispelling this one, but this is the one valid point she has. It's true, that even with this bill in place, no one can use your work against you. That is, as long as you can prove it's yours. Someone could theoretically register your work as theirs and collect on it until they were discovered, though. They might even get away with it. They can't, however, sue you. They'd be stupid to try because odds are you could prove yourself as the creator and thus prove that they never had a right to register it. Then they'd be busted for fraud.
Still, the thought that someone could register your work and collect on it as long as they don't get exposed is troubling. I know that In the past people have assumed the identity of the rights-holder of work that was not theirs, but I doubt it's easy to do. The advent of a central registry would make it very easy if the real rights-holder isn't registering their work themselves, because that is where an interested party will look first for a match. Just divert the stream to water your own fields and make sure you're long gone by the time the sheriff shows up.
Point #5 - "If I don't track down people who are illegally using my copyrighted works, I'm SOL!"
Meredith's retort: "This is the state of things already"
Counter-argument: Sure, but as it is now, I can deal with them as if they have broken the law, because I know without a doubt that they have. Under the new law, I'm not so sure. Did they perform a good faith search or not? If they say that they did, should I just believe them? If I don't and I'm wrong, I'm out thousands of dollars worth of legal expenses.
Even if they did perform a good faith search, I still have to track them down. It could be as hard to find them as it was for them to find me. If I knew they had broken the law it might be worthwhile to try and find them because I can collect significant damages from them. But if they did everything in good faith, I can only collect "fair market value" which probably won't be worth all the trouble I would go to.
This brings up an ironic dichotomy about this bill. when someone uses an orphaned work, they are searching for the creator to ask for something they are not necessarily entitled to. If they don't find the creator, the law lets them use it anyway. When the artist finds out that the work is being used, they now have to set out to find the person using it. The artist is now searching for the user to collect something they ARE entitled to, but if they don't find the user, they don't get anything.
Point #6 - "Displaying my artwork anywhere means that it automatically becomes orphaned, and anyone will be able to use it!"
Meredith tries to discredit the point using information about what constitutes publication, but never manages to point out how this information is relvant. Publication is certainly not a requisite for something to become an orphaned work. The point, though a little overstated, makes sense. Under the new law, essentially (and despite lawmakers' intentions) this bill would mean that all works are orphaned until proven otherwise. (If you know who the artist is, then the work is proven not to be an orphan)
In effect, anything you post on the web COULD be orphaned no matter how you slice it, since anything you put on the web can be separated from your contact info. So the point is correct, in a way.
Monday, June 2, 2008
The Good and the Bad. (But Mostly Bad)
I've been getting a few new insights into the 2008 orphan works bill and I like some of the suggestions I'm hearing.
for one thing, Public Knowledge, an issues blog that has a lot to say about orphan works, suggests the database be set up according to the DNS system for domain names. For those not familiar with this, I'll give an explanation based on my limited experience.
When you go to register a domain name, you can go through any number of registries. There are, no doubt, thousands to choose from. The first step is to enter the domain you want in a little field and it will tell you if the domain is available. All domain registries point to the same database of domain names, so while there are thousands of registries, there is only one database.
Public Knowledge proposes a similar model. While there can be thousands of registries, there should only be one database (or one database for each type of media, at least). This is a big improvement, because it eliminates the possibility that a work won't be found simply because it was registered with a different database than the one searched. At the same time, having multiple registries one can go through to access the database will keep pricing competitive.
I also learned on Public Knowledge, (though I don't know if they suggested this one) that in order for a user of an orphaned work to be considered in "good faith" they don't only have to perform a reasonable search, but they also have to negotiate in good faith if the rights holder shows up.
This means that they can't just offer $50 for a $500 work as I gave in my example in the previous post. If they try it, all the rights holder has to do is present the offer in court to show that the user is not negotiating in good faith. If the court rules in the rights holder's favor, the user is subject to all penalties according to current copyright law.
There are still some problems this leaves open, though. For instance, an infringer who hasn't made a good faith search can still use this bill to bluff their way out of statutory damages. I'll explain.
We use the term "bad actor" to refer to someone that steals copyrighted work with no intention of making good in hopes that they simply won't get caught. Under current law as well as under the new bill these "bad actors," if caught, are subject to the full penalties of copyright law. The suggestion has been made that bad actors could make up phony documentation of a "diligent search" after being caught in hopes of avoiding these penalties.
Proponents of this bill have stressed time and time again that they won't be able to put together a "diligent search" defense strong enough to fool the courts, but this is not the point. They don't have to fool the courts, only the rights holder. The trick is to avoid going to court altogether.
Since the rights holder can't see the details of the search, they can't verify if the user is in earnest or not. If he/she is, the rights holder will likely lose a substantial amount of time and money by attempting to sue. In the case we've mentioned the user is not in earnest, so the rights holder has a great deal to gain from suing, but they don't know that. The infringer doesn't have to prove to the rights holder that they performed a proper search before the court date, so by claiming that they did make a proper search, they can get off by only paying the rights holder fair market value out of court.
Some people might argue that a bad faith infringer wouldn't go to this kind of trouble, but he/she would be a fool not to. Where the infringer is already facing the full penalty if the case goes to court, they have nothing to lose and everything to gain. If the rights holder calls their bluff and sues anyway, the infringer is no worse off for trying.
A solution to this would be to have a provision in the law that requires a user of an orphaned work to produce details of their search for the owner should the owner show up an ask for this information. If they fail to produce the details, the court can rule that they haven't negotiated in good faith. This way, a rights holder knows whether the user is really in good faith or not without going to court. They can settle out of court for whatever they are entitled to.
Another problem that I think needs still needs to be worked out is that of defining "fair market value". Every industry has its sell-outs and they are very common. For instance, in my industry, logos are a very common type of job. Industry standard for a logo is around $1000–$1500 most places in the US. However a lot of little "logo sweat shops" have cropped up all over the country boasting much lower prices. I hear a lot of designers complain about LogoWorks, (and rightly so, because I know what they pay their designers) though they're not the worst by far. They charge about $300 –$700 for a logo.
All one has to do these days is google "quality logo design" or something similar and they can find numerous companies selling custom logo designs for $99 and less. These are not the same quality level as those going for $1500, and many of these sell-outs aren't selling anything of value at all, but most entrepreneurs can't tell the difference in quality. Ask most people in most businesses (or even a librarian or museum curator for that sake of this argument) what a logo is worth and $100 or thereabouts will probably be their guess.
Now, of course, the orphaned works bill is not likely to have much bearing on logos. I only used this example to illustrate that industries can have very different points of view about what something is worth. And the people using orphaned works are going to have even more differing opinions still, since they don't know the industry involved. Whose opinion can they trust about what a work is worth? Whose opinion will the courts go by? Where a judge is far more likely to understand the position of, say, a librarian, than an artist, will the decision be fair?
for one thing, Public Knowledge, an issues blog that has a lot to say about orphan works, suggests the database be set up according to the DNS system for domain names. For those not familiar with this, I'll give an explanation based on my limited experience.
When you go to register a domain name, you can go through any number of registries. There are, no doubt, thousands to choose from. The first step is to enter the domain you want in a little field and it will tell you if the domain is available. All domain registries point to the same database of domain names, so while there are thousands of registries, there is only one database.
Public Knowledge proposes a similar model. While there can be thousands of registries, there should only be one database (or one database for each type of media, at least). This is a big improvement, because it eliminates the possibility that a work won't be found simply because it was registered with a different database than the one searched. At the same time, having multiple registries one can go through to access the database will keep pricing competitive.
I also learned on Public Knowledge, (though I don't know if they suggested this one) that in order for a user of an orphaned work to be considered in "good faith" they don't only have to perform a reasonable search, but they also have to negotiate in good faith if the rights holder shows up.
This means that they can't just offer $50 for a $500 work as I gave in my example in the previous post. If they try it, all the rights holder has to do is present the offer in court to show that the user is not negotiating in good faith. If the court rules in the rights holder's favor, the user is subject to all penalties according to current copyright law.
There are still some problems this leaves open, though. For instance, an infringer who hasn't made a good faith search can still use this bill to bluff their way out of statutory damages. I'll explain.
We use the term "bad actor" to refer to someone that steals copyrighted work with no intention of making good in hopes that they simply won't get caught. Under current law as well as under the new bill these "bad actors," if caught, are subject to the full penalties of copyright law. The suggestion has been made that bad actors could make up phony documentation of a "diligent search" after being caught in hopes of avoiding these penalties.
Proponents of this bill have stressed time and time again that they won't be able to put together a "diligent search" defense strong enough to fool the courts, but this is not the point. They don't have to fool the courts, only the rights holder. The trick is to avoid going to court altogether.
Since the rights holder can't see the details of the search, they can't verify if the user is in earnest or not. If he/she is, the rights holder will likely lose a substantial amount of time and money by attempting to sue. In the case we've mentioned the user is not in earnest, so the rights holder has a great deal to gain from suing, but they don't know that. The infringer doesn't have to prove to the rights holder that they performed a proper search before the court date, so by claiming that they did make a proper search, they can get off by only paying the rights holder fair market value out of court.
Some people might argue that a bad faith infringer wouldn't go to this kind of trouble, but he/she would be a fool not to. Where the infringer is already facing the full penalty if the case goes to court, they have nothing to lose and everything to gain. If the rights holder calls their bluff and sues anyway, the infringer is no worse off for trying.
A solution to this would be to have a provision in the law that requires a user of an orphaned work to produce details of their search for the owner should the owner show up an ask for this information. If they fail to produce the details, the court can rule that they haven't negotiated in good faith. This way, a rights holder knows whether the user is really in good faith or not without going to court. They can settle out of court for whatever they are entitled to.
Another problem that I think needs still needs to be worked out is that of defining "fair market value". Every industry has its sell-outs and they are very common. For instance, in my industry, logos are a very common type of job. Industry standard for a logo is around $1000–$1500 most places in the US. However a lot of little "logo sweat shops" have cropped up all over the country boasting much lower prices. I hear a lot of designers complain about LogoWorks, (and rightly so, because I know what they pay their designers) though they're not the worst by far. They charge about $300 –$700 for a logo.
All one has to do these days is google "quality logo design" or something similar and they can find numerous companies selling custom logo designs for $99 and less. These are not the same quality level as those going for $1500, and many of these sell-outs aren't selling anything of value at all, but most entrepreneurs can't tell the difference in quality. Ask most people in most businesses (or even a librarian or museum curator for that sake of this argument) what a logo is worth and $100 or thereabouts will probably be their guess.
Now, of course, the orphaned works bill is not likely to have much bearing on logos. I only used this example to illustrate that industries can have very different points of view about what something is worth. And the people using orphaned works are going to have even more differing opinions still, since they don't know the industry involved. Whose opinion can they trust about what a work is worth? Whose opinion will the courts go by? Where a judge is far more likely to understand the position of, say, a librarian, than an artist, will the decision be fair?
Monday, May 26, 2008
First Issue: Orphaned works.
Hi, my name is Warren. Welcome to my new blog. I'm a Utah-based graphic designer and I've decided that I want a forum to take up issues that I feel strongly about in the world of graphic design and related fields.
My first topic, and the one that prompted this blog, is the 2008 Orphaned Works bills congress is looking at now. There are two, but they're pretty much identical, so to make things easier I'll just refer to these collectively as the Orphan Works Bill.
There's a lot of fear-mongering going on about this bill. Many people have exaggerated and misinterpreted it. I am writing to bring an informed point of view to these discussions. Don't let that fool you, though. Informed I may be, but I remain, nonetheless, a proud fear-mongerer.
Don't get me wrong. I do see a lot of potential for this bill. There are, however many kinks to be worked out, I think, before it will offer artists like myself the protection we need.
First, a little background. The OWB (Orphaned works bill) did not originate as a money-making scheme for big business as some claim. It is well-intentioned enough. The idea was to help artists and public organizations to gain more access to works that have been abandoned by their rights holders. Such works are said to be "orphaned" and there are hundreds of millions of them. Identifying the truly orphaned works from the ones that are still in use is the tricky part. This is a real problem and when presented with all the facts, most people pretty much agree that something needs to be done about this.
Here's the proposed solution:
The bill would limit liability for someone who uses a work they think is orphaned. They can use the work for free as long as they make a "diligent search" for the rights-holder and the rights-holder doesn't turn up for five years. If the rights holder DOES turn up within the five years, the user (if they conducted a proper search) pays the rights-holder "fair market value" for the piece in question. If they fail to conduct a "diligent search" they are subject to all the penalties they would be under current copyright law.
The bill gives some guidelines for determining a "diligent search," but ultimately, the individual industries are supposed to be responsible for determining the specifics. This job will be left up to a number of commercial "databases" (registries, essentially, but we can't use that term because registries are against the Berne Convention) where artists will "submit" (as opposed to registering) their work so that it's searchable and tied to their contact info. Submission is "not mandatory". If the searcher searches a number of these databases and doesn't find a match, they have conducted a "diligent search".
As far as "fair market value" goes, the courts have their ways of deciding this legally. The point is that the artist can't sue for legal fees or damages even if they are registered with the copyright office. Only for the market value of the work as long as a proper search was conducted. There is also an exception that allows non-profits to use the work and, if the rights-holder turns up, not pay anything as long as the work is taken down immediately.
I think that sums up the bill. Correct me if I've left anything out.
Here's a link to the bill itself: http://www.publicknowledge.org/pdf/ow-act-2006.pdf
This one goes to a synopsis of the bill by Marybeth Peters at it's inception: http://www.copyright.gov/docs/regstat031308.html
Let me make my position clear. I don't oppose the use of an orphaned work. I don't think we should give up on the search for some kind of system to make identifying truly orphaned works easier. But this bill is a lackluster solution and could have damaging consequences.
Here's some problems I've found with this:
First, "fair market value". This is not the biggest problem with the bill, but I want to address this one first because it carries into some of the others. Limiting liability to fair market value means that the artist has a paradoxical decision to face if his/her work is infringed. I'll Illustrate.
Suppose I am a painter and I find someone has used my work without permission. I don't know, but I assume they conducted a diligent search and didn't find me, either because I didn't register, or because the database I registered with wasn't the one they searched, or because the database failed to match the picture he/she was using to the one I registered. Whatever.
Because the user conducted a proper search I can only ask for fair market value. Let's say the rights for this particular image go for about $500 under fair market value. Simple, just call 'em up and ask for your 500 bucks, right? Well, suppose he only want's to pay $50? or doesn't want to pay at all? I could sue, but there's no way I'm going get more than my legal costs, so I'd lose money on that venture. (I don't think I'd want to sue anyway. I hear It's exhausting.)
Under current copyright law, the infringer has something to lose. there's no little dance they can go through to give them permission to use the work without asking. If they used it, and didn't ask, they get the full penalty, including paying my legal costs and damages if he makes me take him to court (that is, if the work is registered with the copyright office). This way HE has something to fear from going to court, not ME. We can settle out of court and I hold the cards. This is how it should be, because, let's remember, he took without asking. (before this bill cropped up this was definitively known as STEALING)
Another issue with "fair market value" is that it assumes the work has a price to begin with. Not everything is for sale. Copyright protects more interests than just commercial ones. I should have the right to decide where my work shows up and where it doesn't, if only because my work is recognized as mine. My reputation is attached to it and I might not want it presented in certain ways.
Yes, this kind of infringement happens under current law, but under current law I can take action against the infringer as though they have broken the law, because they have. This means that along with the actions I take against them, I can force them to take the work down. Under the OWA I can't do that. (though if the infringer is a non-profit, they have an incentive to take it down so they won't have to pay anything. Otherwise, the offending work is here to stay)
Second problem: The bill makes me pay to protect my work. And not just a little. A lot. Now, the bill says that registration is "not mandatory," but I'd be a fool not to because then my work would be easy prey. Some sources, though, say that registering a work may cost as much as $35 a pop. Tack that on with the time it takes to digitize my work and go through the process of registering. I will likely even need to register with multiple databases, since there's sure to be more than one. The costs would be astronomical.
Big business, of course, is prepared to take on the cost, but what about small design firms? Freelancers? The kinds of businesses that don't have the resources to take on this kind of expense? Either cough up the cash or risk having your work used without your permission.
Which brings us to our third problem: Multiple databases. I've actually heard it said that having the commercial sector run the search databases is a good thing. No, this is NOT a good thing. It means there will be no limit to how many databases can show up and no limit to how much they can charge for any of their services. Suppose I go to great expense to register all my work with, say five databases. A searcher searches five databases OTHER than the ones I registered with. The searcher fulfilled his part of the bargain and still didn't find me, even though I registered.
Commercial databases means that my registration offers me little, if any, protection.
Fourth problem: The law requires a search where it is in the searcher's best interest to NOT find me. Where the searcher has all the criterion for a "diligent search" outlined for them, It wouldn't be a hard thing to commence a "diligent search" of the registries where I'm least likely to be found, and documenting it so that the requirements of the law are fulfilled. Just puff up the language so It sounds like he went to a great deal of trouble and voila! Do-it-yourself orphan.
A lot of people don't think that users will go to this much trouble. Maybe, and maybe not, but if the work is worth enough, you can't really discount it.
There's more to this, but it's getting late and I'd better call it good. Perhaps in my next post I'll address some of the arguments for this bill.
In the meantime, please, anyone, let me hear your take on this. I've already heard a lot of discussion but when I bring up concerns I don't often get answers to them. So don't be shy.
My first topic, and the one that prompted this blog, is the 2008 Orphaned Works bills congress is looking at now. There are two, but they're pretty much identical, so to make things easier I'll just refer to these collectively as the Orphan Works Bill.
There's a lot of fear-mongering going on about this bill. Many people have exaggerated and misinterpreted it. I am writing to bring an informed point of view to these discussions. Don't let that fool you, though. Informed I may be, but I remain, nonetheless, a proud fear-mongerer.
Don't get me wrong. I do see a lot of potential for this bill. There are, however many kinks to be worked out, I think, before it will offer artists like myself the protection we need.
First, a little background. The OWB (Orphaned works bill) did not originate as a money-making scheme for big business as some claim. It is well-intentioned enough. The idea was to help artists and public organizations to gain more access to works that have been abandoned by their rights holders. Such works are said to be "orphaned" and there are hundreds of millions of them. Identifying the truly orphaned works from the ones that are still in use is the tricky part. This is a real problem and when presented with all the facts, most people pretty much agree that something needs to be done about this.
Here's the proposed solution:
The bill would limit liability for someone who uses a work they think is orphaned. They can use the work for free as long as they make a "diligent search" for the rights-holder and the rights-holder doesn't turn up for five years. If the rights holder DOES turn up within the five years, the user (if they conducted a proper search) pays the rights-holder "fair market value" for the piece in question. If they fail to conduct a "diligent search" they are subject to all the penalties they would be under current copyright law.
The bill gives some guidelines for determining a "diligent search," but ultimately, the individual industries are supposed to be responsible for determining the specifics. This job will be left up to a number of commercial "databases" (registries, essentially, but we can't use that term because registries are against the Berne Convention) where artists will "submit" (as opposed to registering) their work so that it's searchable and tied to their contact info. Submission is "not mandatory". If the searcher searches a number of these databases and doesn't find a match, they have conducted a "diligent search".
As far as "fair market value" goes, the courts have their ways of deciding this legally. The point is that the artist can't sue for legal fees or damages even if they are registered with the copyright office. Only for the market value of the work as long as a proper search was conducted. There is also an exception that allows non-profits to use the work and, if the rights-holder turns up, not pay anything as long as the work is taken down immediately.
I think that sums up the bill. Correct me if I've left anything out.
Here's a link to the bill itself: http://www.publicknowledge.org/pdf/ow-act-2006.pdf
This one goes to a synopsis of the bill by Marybeth Peters at it's inception: http://www.copyright.gov/docs/regstat031308.html
Let me make my position clear. I don't oppose the use of an orphaned work. I don't think we should give up on the search for some kind of system to make identifying truly orphaned works easier. But this bill is a lackluster solution and could have damaging consequences.
Here's some problems I've found with this:
First, "fair market value". This is not the biggest problem with the bill, but I want to address this one first because it carries into some of the others. Limiting liability to fair market value means that the artist has a paradoxical decision to face if his/her work is infringed. I'll Illustrate.
Suppose I am a painter and I find someone has used my work without permission. I don't know, but I assume they conducted a diligent search and didn't find me, either because I didn't register, or because the database I registered with wasn't the one they searched, or because the database failed to match the picture he/she was using to the one I registered. Whatever.
Because the user conducted a proper search I can only ask for fair market value. Let's say the rights for this particular image go for about $500 under fair market value. Simple, just call 'em up and ask for your 500 bucks, right? Well, suppose he only want's to pay $50? or doesn't want to pay at all? I could sue, but there's no way I'm going get more than my legal costs, so I'd lose money on that venture. (I don't think I'd want to sue anyway. I hear It's exhausting.)
Under current copyright law, the infringer has something to lose. there's no little dance they can go through to give them permission to use the work without asking. If they used it, and didn't ask, they get the full penalty, including paying my legal costs and damages if he makes me take him to court (that is, if the work is registered with the copyright office). This way HE has something to fear from going to court, not ME. We can settle out of court and I hold the cards. This is how it should be, because, let's remember, he took without asking. (before this bill cropped up this was definitively known as STEALING)
Another issue with "fair market value" is that it assumes the work has a price to begin with. Not everything is for sale. Copyright protects more interests than just commercial ones. I should have the right to decide where my work shows up and where it doesn't, if only because my work is recognized as mine. My reputation is attached to it and I might not want it presented in certain ways.
Yes, this kind of infringement happens under current law, but under current law I can take action against the infringer as though they have broken the law, because they have. This means that along with the actions I take against them, I can force them to take the work down. Under the OWA I can't do that. (though if the infringer is a non-profit, they have an incentive to take it down so they won't have to pay anything. Otherwise, the offending work is here to stay)
Second problem: The bill makes me pay to protect my work. And not just a little. A lot. Now, the bill says that registration is "not mandatory," but I'd be a fool not to because then my work would be easy prey. Some sources, though, say that registering a work may cost as much as $35 a pop. Tack that on with the time it takes to digitize my work and go through the process of registering. I will likely even need to register with multiple databases, since there's sure to be more than one. The costs would be astronomical.
Big business, of course, is prepared to take on the cost, but what about small design firms? Freelancers? The kinds of businesses that don't have the resources to take on this kind of expense? Either cough up the cash or risk having your work used without your permission.
Which brings us to our third problem: Multiple databases. I've actually heard it said that having the commercial sector run the search databases is a good thing. No, this is NOT a good thing. It means there will be no limit to how many databases can show up and no limit to how much they can charge for any of their services. Suppose I go to great expense to register all my work with, say five databases. A searcher searches five databases OTHER than the ones I registered with. The searcher fulfilled his part of the bargain and still didn't find me, even though I registered.
Commercial databases means that my registration offers me little, if any, protection.
Fourth problem: The law requires a search where it is in the searcher's best interest to NOT find me. Where the searcher has all the criterion for a "diligent search" outlined for them, It wouldn't be a hard thing to commence a "diligent search" of the registries where I'm least likely to be found, and documenting it so that the requirements of the law are fulfilled. Just puff up the language so It sounds like he went to a great deal of trouble and voila! Do-it-yourself orphan.
A lot of people don't think that users will go to this much trouble. Maybe, and maybe not, but if the work is worth enough, you can't really discount it.
There's more to this, but it's getting late and I'd better call it good. Perhaps in my next post I'll address some of the arguments for this bill.
In the meantime, please, anyone, let me hear your take on this. I've already heard a lot of discussion but when I bring up concerns I don't often get answers to them. So don't be shy.
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