Semi-OT: Congress about to limit artists' copyright rights

[Leo Mauler]

--- On Mon, 7/7/08, Billy Crook <billycrook at gmail.com> wrote:

> To drag out a dead horse for a fresh clubbing, this came my
> way via RSS, and I thought I'd share:
> http://www.eff.org/deeplinks/2008/07/a-real-life-orphan-works-dilemma
> 
> This from the EFF, no less.
>
> The Orphaned Works Act would *make* the copyright owner
> money.  It's only a win-win for rights holders, and fixes 
> one way current copyright law can stifle innovation and 
> commerce.

There is an interesting little detail about the "Orphan Works Act" which apparently the guy I got the story from, and even this EFF guy, failed to notice in the original bill: the "Orphan Works Act" doesn't really change anything if the copyright holder sues the infringer and the infringer won't pay the copyright holder what the copyright holder wants for the copyrighted object.

What is the problem?  That an unknown status of a copyrighted object limits its use in derivative works because the copyright holder might pop up and bring a civil action against the derivative work maker which excessively harms the derivative work maker, despite attempts by the derivative work maker to locate the copyright holder.

This still exists even if the Orphan Works Act is implemented.  One part of the bill's text (Section 2, Sec. 514, (b) Conditions for Eligibility-, (1) CONDITIONS- (A) IN GENERAL) seems to imply that civil cases will be limited to nothing more than the "reasonable fee" if the infringer makes an earnest attempt to locate the copyright holder.  However, in "(B) EXCEPTION-", located immediately below (A), we learn that if the copyright holder refuses all the offers as inadequate, the civil suit proceeds.

Which means that civil suits aren't actually prevented if the copyright holder wants more than the infringer feels is a "reasonable fee".

Which means that even if the derivative work makers make a good faith attempt to find the copyright holder(s), they can still be sued for full damages.

Which is the problem everyone says the "Orphan Works Act" will solve, except that it doesn't solve that problem.

The aforementioned subparagraph (c) does limit all lawsuits against non-profit organizations such as libraries, educational institutions, archives, and public broadcasting entities, provided the infringement was performed without any purpose of direct or indirect commercial advantage, was primarily educational, religious, or charitable in nature, and was STOPPED after the copyright holder informed the body in question that infringement was occurring.  Otherwise, the lawsuit can proceed.  Again, this is continuing the old system: non-profits can't use copyrighted works without paying copyright fees to the copyright holder.

Which means that the "Orphan Works Act" doesn't fix the problem people are saying it will fix.