Senate passes copyright bill to mixed reaction
By DANIEL BARLOW Vermont Press Bureau | October 02,2008
MONTPELIER — In the midst of congressional negotiations over the proposed Wall Street bailout last week, the U.S. Senate quietly passed a bill that could change how copyrights on artistic creations are enforced.
U.S. Sen. Patrick Leahy, D-Vt., is the author of the Shawn Bentley Orphan Works Act, a bill that would create a database of copyrighted works to make it easier for organizations and corporations to determine who owns the copyright of a particular work.
The change, according to Leahy, would encourage more so-called "orphan works" — art whose copyright owners are unknown or cannot be located — to be displayed or used by setting up a system to help locate the owner.
It would also limit the financial penalties of those who use a copyrighted image so long as they made a "good faith" effort to search for the copyright holder, according to Leahy's staff. That provision is aimed at encouraging the display or further use of art that may be gathering dust somewhere out of concern as to who holds the copyright.
"Some of our most treasured personal and national artifacts are being left unused and unseen because information about their copyright ownership is unknown," Leahy said in a prepared statement.
The bill has the support of the Register of Copyrights, the Association of American Publishers and the College Art Association. Co-sponsor Sen. Orrin Hatch, R-Utah, said it often isn't easy to identify owners of copyrighted work, especially if the original creator has died.
"Countless artistic creations — books, photos, paintings and music — around the country are effectively locked away in a proverbial attic and unavailable for the general public to enjoy because the owner of the copyright for the work is unknown," he said in a statement.
But the proposal has divided the arts community nationally and in Vermont. Dozens of national arts organizations such as the American Society of Illustrators Partnership, the National Writers Union and the National Association of Record Industry Professionals, have come out in opposition to the bill.
"If signed into law, it would create an irresistible incentive for unscrupulous individuals and companies to violate copyrighted material, including the political cartoons created by our members," said Ted Rall, the president of the Association of American Editorial Cartoonists, in a prepared statement last week.
Stephen R. Bissette is a retired comic book artist and writer who now teaches at the Center for Cartoon Studies in White River Junction. An ardent advocate of creator's rights, he said Wednesday that Leahy's bill is very troublesome.
The problem with the orphan's work bill is that it threatens to alter the relationship between a creator and his or her work, Bissette said. He said the bill's language is too vague on the registration process for the proposed database and wrongly puts the burden on the creator to take additional steps to protect their work.
"Right now, for me as an artist, when I use my head, my hands and my imagination and put something down in my sketchbook, it's protected," Bissette said. "But this bill would invert the relationship and force someone to prove that their copyright was violated."
Alex Aldrich, executive director of the Vermont Arts Council, has a different perspective on the proposed law. He called it a "good bill for a variety of reasons," including that it could result in more artistic work whose copyright ownership is in doubt be viewed by the public.
"Right now a lot of individuals and organizations are reluctant to show or advertise a piece of art in their possession because the ownership is unknown," Aldrich said.
Leahy's proposal would not infringe on the ownership of anyone's creations, Aldrich added, and if artists discover someone violated their copyright, they still have full protections. But what the law does is limit damages for someone who used an image or other creation if they first tried to find out who holds the copyright.
Aldrich said today's artists need to understand the business management side of the industry, including possibly registering their work with the U.S. Library of Congress.
"All you need to do is make sure that your name or signature is on the work," he said.
Both sides have valid points in this debate, according to Oliver Goodenough, a professor at the Vermont Law School in South Royalton.
He said copyright law in the United States has been too restrictive over the years, limiting the display and use of work whose copyright holders are not known. The bill would set up a system that allows work to be used and copyright holders to be paid when and if they step forward.
On the other hand, Goodenough said writers and artists should be concerned with the wrongful use of their work, especially with the exposure — and the increased chance of theft — from displaying items on the Internet.
"They might never know that their words or image was used on a travel agency brochure in Walla Walla," he said.
The debate may be moot for now. According to Leahy's office, the U.S. House is unlikely to take up the measure before the November presidential election.
Contact Daniel Barlow at firstname.lastname@example.org.