Visual artist groups have been up in arms about orphan works reform proposals for a long time. This opposition is based on misconceptions about reform proposals, which we debunk here. One of these misconceptions is that the orphan works bills currently before the House and Senate would require owners to act proactively to protect their rights. So lets talk about the idea of owners being active in protecting their rights.
Let me be clear. The orphan works bills would not require owners to take any steps not already required by copyright law to be eligible for copyright protection. The bills would merely provide a way, with visual registries, to help owners identify themselves as creators of their works. Owners are free to use these services or not.
Having said that,is it so wrong for visual artists to proactively protect their rights? If you believe the rhetoric, the notion of encouraging owners to take active steps to protect their rights seems foreign to visual artists. But is being proactive unprecedented? The answer is NO. It is encouraged by the law and normal practice in many copyright industries.
For example, copyright law requires owners to register their works within 3 months of publication in order to be eligible for statutory damages—which can be as high as $150,000 per work infringed. Even without a legal requirement, many copyright owners act voluntarily to protect their rights. For example, musicians and performers voluntarily register with collective societies such as ASCAP, BMI, SESAC, SoundExchange and Royalty Logic. Various illustrator groups have clearly tried to come up with a collecting society in the US, but it looks like at least around this time last year, they still had nothing together.
Clearly being proactive is beneficial to both owners and users. The Copyright Office registry and the registries of the collection societies, such as ASCAP and BMI, serve to give notice to users about the existence of rights. These registries can also provide an additional source of licensing income by connecting users with owners. In addition, being proactive allows owners to manage their rights efficiently. The musicians’ collectives I just referred to make the process of collection and distribution of royalties possible.
Visual artists could also benefit by registering their works in “electronic databases” or “visual registries” proposed in the orphan works bills. With these databases, we don’t know for sure if they’re going to be expensive, but generally digital technology dramatically drops costs while adding additional functionality. For example, an online service like Flickr.com allows unlimited uploads and storage for $25 a year. Flickr also gives owners exposure and licensing abilities, whereas the copyright office registry gets buried in a text search.
Given the possibilities for benefit, visual artists should pause to at least consider the idea of proactively protecting their own rights before jumping on the bandwagon out to defeat the orphan works bills.