Archive for June 27th, 2008
If It Ain’t Broke, Don’t Fix It or, Who the Hell is Shawn Bentley and Why Should We Give a Fuck?
Written by John Erianne on June 27, 2008 – 6:13 pm -Recently, Congress introduced two bills, S. 2913 and H.R. 5889, which would significantly alter existing copyright law. These bills, the Orphan Works Act of 2008 or, the Shawn Bentley Orphan Works Act of 2008 (the Senate version) are very similar to a bill that failed in 2006, and would limit judicial remedies in copyright infringement cases involving orphan works of artistic expression if the measures become law.
An “orphan work” is defined as a piece of intellectual property subject to copyright protection in which the creator is unknown or unavailable to give license or permission for use by another party. In theory, this legislation would set up a system whereby the search for these unknown creators can be made easier through the creation of several databases and archives and, should an infringement of some kind occur, allow for a limited, but allegedly fair compensation for the use of said work should the unknown creator pop-up later with a claim. I say, “in theory” because, while this all sounds very reasonable on the surface, what Congress is essentially doing is allowing for the eminent domain of intellectual property and it is being fast tracked through Congress by creating a problem in search of a solution.
According Senator Orrin Hatch, sponsor of the Senate version of the bill, “there are scores of superb music, literary masterpieces and magnificent photos and art that clump corners, collect dust, fill floors and dot shelves in attics and storage rooms across the nation — items of immense artistic and historic merit that are unavailable to Americans because their owners are unknown and people are leery of making the work publicly available for fear of being sued.” This problem was suggested in a report from the Copyright Office that the Senator and his co-sponsor, Sen. Patrick Leahy specifically requested in 2005. Me, suspicious fellow that I am, I’m wondering why the senators would request such a report to begin with. Because, while it is true that there does seem to be a problem with orphan works, that problem was created in large part by the Sonny Bono Copyright Extension Act of 1998. Why aren’t the Senators simply proposing a bill to repeal that law?
I’ll tell you why:
Because the same entities that lobbied so hard for the extension of the copyright didn’t realize that by doing so they were not only protecting their own future claims on the intellectual property they owned, they were keeping works out of the public domain that they could later exploit to their own benefit.
If you think I’m blowing smoke, ask yourself who would benefit most from this legislation should it become law?
And by wrapping this legislation up in the shiny wrapping of the “national interest,” Congress is taking power away from the creators of art and putting more of it into the hands of the powerful.
Supporters of this legislation argue that it does no such thing. That there is no mandate put upon artists with respect to registering their intellectual property and the system would help them rather than hurt them. The supporters of this legislation include Google, Microsoft, and the Motion Picture Association of America among others.
While it’s true that the law would not absolutely require artists and writers to register their works, the limitations on their legal rights with respect to their creations would, in effect, compel them to do so. And can we trust the companies running these registries not to charge fees that would be prohibitive for most artists? I don’t. The Copyright Office, itself, now charges $45 to register a work. What if you suddenly had to do that with everything you created? Who could afford that? I couldn’t.
That’s point one. Point two is simply a matter of principle:
For example, a while back I came across a poem of mine posted on a message board. The title had been removed and the poem was not attributed to me, but the person who posted it on the message board seemed to like it and had posted it on the message board as an example of something he was fond of. He had infringed on my copyright. Now, at the time, I didn’t much care, because he wasn’t exploiting the work for commercial purposes and had posted it with the best intentions. As such, I have no interest in suing him. However, should this bill become law, that poem suddenly is subject to being defined as an orphan. Say some shitbird decides he wants to turn the poem into a country and western song (okay, I realize my poetry doesn’t lend itself to song, but I’m just saying, as an example). The bill doesn’t clearly define what constitutes a reasonable search for the creator and given that my name and the title of the poem aren’t available in the posting, it’s possible for this guy to perform what would legally constitute a reasonable attempt to identify me and gain my permission and still be unable to do so. The song is published and recorded and somehow becomes a minor hit. I hear it on the radio and realize — “Hey, that’s my poem!” I can sue, but under the circumstances all I’m entitled to is what the law decides is “reasonable compensation” which is whatever the guy would have paid me had I given him permission in the first place. This completely misses the point — which is, that I have the right to decide who gets to use my work and for what purpose. What if I don’t want my poem turned into a country song no matter how much money the guy was willing to pay me? I’m supposed to grab a spoon and eat shit because the law says I have no other recourse?
And this brings me to point three: This legislation would essentially grant more rights to creators of derivative works at the expense of the original artist.
So, I ask again: Who really benefits from this legislation?
