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Another copyright changing bill. This time, directed at small time artists.

Source
Source 2

As you can imagine, this terrifies me to no end, since I myself am an artist. It essentially takes away your rights as an artist to the things you create, allowing both the public and corporations to use your art without the need for compensation…. please, help.. there are lots of hard working artists, especially in America…

So if a company claims a copyright work from an artists, can they then sue the artist for copyright infringement despite them not having made the original work?

And does this mean that companies can claim copyright on fan artist works as well, essentially killing the entire fan art and fan fiction genre's by claiming them all as copyrighted material and suing anyone who doesn't pay to use them?

The wording of the bill with the links provided doesn't really answer those questions to me. I suppose it comes down to what exactly it means by the public, and the process involving in submitting a copyright on a work, whether large monetary entities will have special privilege to do so over other artists.

So Copyright Law get's even more fucked than it already is? This looks like heaven for Patent Trolls. While I draw a lot, I don't sell my art, but I know a lot of people who do and who make their living off of it. Of course the people making laws like this don't give a rats ass about the little artist's livelihood.

I really detest this congress strategy of "Make a tiny change that really does nothing and keep pushing the bill over and over until the general public get so tired and used to it, that they eventually blot it out and it get's passed" I feel that is the epitome of morally bankrupt law making, because it shows they blatantly don't care how many times or how many people they are supposed to represent oppose it, if the lobbyers lining their pockets want it, the law makers will pass it. It's the same shit that's been going on with the "Censor the Internet/SOPA" shit.

You know what. After hearing all these bills, I think there should be a "anti bill" to prevent these bills.

But I doubt it'll happen. So now, I''ll enjoy getting sued for every drawing I make.

Either way, I'm done with the internet, fuck this shit!

I fully support allocating additional legal protections to non-profits (especially of the academic variety, such as libraries and universities) through bills such as this one. Many such institutions are afraid to touch works of potential value even if it's highly likely that the coverage of said works under copyright laws have long expired, due to fear of unwittingly using the work of a currently active artist/author/musician and being sued for enormous amounts of money. Non-profits should still be forced to stop using orphaned works if the original creator comes forward, of course, but I support giving them protection to being sued, at least if they can demonstrate that a thorough search was insufficient to locate the creator.

I'm ambivalent towards the prospect of protection for for-profit institutions, however, so overall I don't fully support or oppose orphan works acts such as this one.

@Filler_The_Fool

I’’ll enjoy getting sued for every drawing I make

That is not at all representative of the reforms suggested by orphan works acts. Relax.

Keep in mind that unlike many other pieces of copyrights-based legislation that have seen the light of day recently, bills such as this one aren't just sponsored and backed by muh corporations; the aforementioned libraries and universities have always been supportive of additional legal protection for what they do, and there are few institutions for which I am a more willing advocate than libraries.

@Particle Mare

What is your response to the claims made in the article linked in the OP, specifically those which it gets from this page? Assuming they know what they're talking about, it sounds pretty insidious to me.

I may not have a full understanding of this yet, but to me, it seems the problem is that small time artists will have little way to defend their art, having to register it (which costs money) every-time they make something (time and hassle) or risk bigger time artists claiming their work with no effort or way to stop them, effectively making it so anytime an artist posts a picture without going though the hassle and money, they effectively forfeit ownership of that picture to the first person to pick it up. As someone who spends a lot of time on art blogs and sites, this would be absolutely devastating.

I may have been to quick to judge the intent of this bill, I mean, I can somewhat sort of see why they would propose this, seeing how orphaned art not being able to be used is somewhat a problem, but the ramifications, plus the fact they tried this before, makes me suspect.

@0.9999…=1

Assuming they know what they’re talking about, it sounds pretty insidious to me.

That's why I specified in my post that overall, I neither fully support nor fully object to orphan works acts. Take, for instance, the first source provided by Calkarot. The main piece of rhetoric employed by the artist to persuade the reader to oppose the legislation is the following:

"These proposed changes to copyright laws are being lobbied for by major internet players that want to be free to catalog and monetize creative works they did not create."

As I stated previously, this is one of the implications of orphan works acts that I am ambivalent, perhaps skeptical, towards. Make no mistake: I view the vagueness surrounding orphan works at the moment to be intellectually stifling and in serious need of reform, but there's a reason why I would sleep better knowing that these proposed protections were being given to librarians and scholars as opposed to businessmen.

However, I cannot say that I am wholly against the monetized aspect of this. Firstly, note that all sources provided so far are biased; two are from artists who view themselves as firmly on one side of this, and one is from an anti-orphan works act advocacy group. Don't get me wrong; the case that they make for the potential of corporations using their muscle to the disadvantage of indie artists is not illegitimate. However, please do not allow this issue to be simplified into a matter of "creative people versus capitalists". As our friend ArchaicEX pointed out in a Skype discussion earlier today, there are potential creative benefits to a broad category of indie artists from the additional elbow room provided by clearing away the legal minefield surrounding unclaimed and orphaned works.

"The "orphan works" part would have given the Cinema Snob a defence when he used footage from a movie that he had no way of knowing was still owned by an active studio, for example, since names had changed, companies had changed hands, and the trail was impossible for a small-time YouTuber to follow. The "derivative works" changes could be the greatest legal move forward for fan artists I've ever heard of."

@Ryumaru Borike

having to register it every-time they make something

This is a misrepresentation of the nature of orphan works acts--reverting back to pre-1976 copyright laws has never been part of the agenda. The cornerstone of any such act boils down to the following (quoting from a 2008 bill):

"The user undertook a diligent and good faith search to locate the owner of the work yet could not find him or her"

Then, and only then, does the user have legal maneuvering space to do something with the work. Registration is a steadfast assurance, but making it mandatory for copyright is of course a ridiculous and reactionary idea. Ensuring protection of your work with an orphaned works act in place could be as simple as putting your signature on the piece. A strong majority of (especially skilled) artists already do this to ensure that reposts can be traced back to them, so very little would change.

Sorely missing from this thread is a link to the Copyright Office's proposal on which we're basing this discussion, Orphan Works and Mass Digitization.

So let's look at Brad Holland's 8 "facts" from one of these sources, as Calkarot asked of me and 1 asked of Particle, based on my -- admittedly brief -- reading of the proposal.

• "'The Next Great Copyright Act' would replace all existing copyright law."
  That's ridiculous. Feel free to find all the parts of U.S. Copyright Law that aren't covered by the proposed legislation, but I'll tell you that it misses the scope, ownership, transfer, and duration of copyright.
• "It would void our Constitutional right to the exclusive control of our work."
  How? Further, what Constitutional right? Article I, section 8 is interpreted to give Congress the power to pass copyright laws, but "exclusive control of our work" or similar is not mentioned. See Copyright Enactments: Laws Passed in the United States since 1783 Relating to Copyright.
• "It would 'privilege' the public's right to use our work."
  This is poorly communicated. "Privilege the public's right"… Privileging a right? How do you grant a privilege to a right? What does this mean? Whatever it means, I'm sure we'll cover it.
• "It would 'pressure' you to register your life's work with commercial registries."
  Yes, this is one of the models that the Copyright Office offers as a possible solution to the orphan works problem, but not the one it recommends. Remember, this is a proposal, not a bill.
• "It would 'orphan' unregistered work."
  This is also not true, but it's where the meat of all this comes in. By the Office's recommendation, a user is granted limited liability for their infringement only if they meet the six requirements on page 56.
  1. If reasonable, the user still has to provide attribution to the copyright owner.
  2. The user needs to file a document with the Copyright Office describing the work they're using, what they're using it for, how they found it, and what they did to try to contact the owner.
  3. The user needs to display a special mark along with the work that labels it as orphan work.
  4. When sued for infringement, the user has to claim eligibility under these requirements up front.
  5. Leading up to an infringement case, the user needs to explain exactly how they're eligible for the limited liability.
  6. If sued for infringement, the user has to prove in court that he or she conducted a "good faith, qualifying" search for the owner of the infringed material before using it.
• "It would make orphaned work available for commercial infringement by 'good faith' infringers."
  Well, yes, provided they meet the 6 criteria I listed above. You could replace "good faith" with "blue-skinned" in Holland's list and this statement would be equally as meaningful. Performing a "good faith qualifying search" is a requirement to use an an orphan work, but it's not actually left to faith when you have to prove it in court if challenged.
• "It would allow others to alter your work and copyright those "derivative works" in their own names."
  Again, only if they fulfill all the requirements above. The difference between a user distributing original orphan work and a derivative of that work affects the kind of relief the owner can receive, not the ease of making an orphan work claim. In the former case, the owner's potential monetary reward is drastically limited. In the latter case, the same monetary restriction applies, but it's also more difficult for the owner to get the court to order the user to stop producing the work. See pages 63 and 67 of the proposal.
• "It would affect all visual art: drawings, paintings, sketches, photos, etc.; past, present and future; published and unpublished; domestic and foreign."
  Seems like it! I have no cause or ability to refute this. Hopefully, though, I've made it more clear what exactly the effect on "all visual art" might be. If you want to read the proposal more thoroughly or you study copyright law, I'll cede this to you; your interpretation is more valuable than mine.

this is one of the models that the Copyright Office offers as a possible solution to the orphan works problem, but not the one it recommends

Addendum: of the possible solutions proposed, several are quite interesting in terms of potential reform, especially the limited liability proposal. I am pleased to see that the Office is considering this as an avenue of approach.

LL is exactly what I talked about: a user that demonstrates reasonable use of an orphan work should be forced to cease their usage if the artist objects, but should not be forced to pay significant compensation if it can be demonstrated that it was extremely difficult to identify the artist at the time. Ideally, LL would be realized in the form of the exception-based model that is also proposed; exception-based is particularly attractive to me as it would allow sweeping protections to be given to academic institutes while simultaneously allowing caution when approaching the for-profit implications of orphan works reform.

"The United States could establish exceptions to exclusive rights for the use of orphan
works, much like exceptions that exist for other uses such as preservation or education."

Mandatory registration is merely one of several possible methods of reform, Ryumaru Borike, and I'm just as opposed to it as you are. As you can see here, there are superior alternatives.

“These proposed changes to copyright laws are being lobbied for by major internet players that want to be free to catalog and monetize creative works they did not create.”

Correct me if I'm wrong, but isn't what KYM doing sort of something like this? This is a for-profit site that hoardes fan-art, after all. I tried reading up on the whole thing, but I'm too groggy as of now to fully comprehend the entire thing.

For everyone's information, this is the Clause of the Constitution (1:8:8) being mentioned, one of Congresses' Enumerated Powers:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

So yeah, "exclusive control", "exclusive right", I'd say essentially the same thing.

In addition, I'd like to point attention to one of the comments in the initial source, and gauge people's reaction to the claims there.

This law (not technically the correct term, of course) has two major problems with it:

First, the burden of proof is placed on the artist, not those who wish to make use of it. This is a major problem. Getting a work declared orphaned should be case by case, not by exclusion. To see what this would cause, look up the term “patent troll”. Artists seek to keep patent trolling out of their industry.

Second, this law takes the concept of ‘small government’ to ‘no government’. All registries would be private, and as far as I could tell, have little regulation. I’m a small government supporter (I actually think we should get rid of the post office), but property law (which this is a form of) is squarely in the government’s rightful court (as in we have a right to see the government enforce it). If you make it private it WILL get abused.