Colby: Protect Writers Against Theft-Through-"Orphan Works" Legislation

Call for Action: Fight the “Orphaning” of
Writers’ Constitutional Right to Copyright Protection
By guest blogger Jerry Colby, President, National Writers Union

[Note from Shel: This was originally sent by Jerry as a letter to members of the NWU. I asked if I could post it here to share with non-NWU members.]

Librarians typically want to expand the public’s access to their
collections. It’s in their nature to help people grow in
knowledge. While getting a salary, they do not do this just for
money.

Online database companies and publishers, like librarians,
archive works in the arts and sciences. They, too, want to see
more people using the works they have stored in digital format.
Unlike librarians, however, they do this for profit by selling
digital copies of others’ works. For years they did this without
seeking permission from writers and artists who created these
works – until the Supreme Court in 2001 declared this illegal in
its Tasini v. New York Times et al. decision which affirmed that
usage of work must be paid for in electronic media.

The database companies and publishers have not given up their
efforts to seize control of the rights to copyrighted works they
want to sell through the Internet. Beside all-rights contracts,
they have also targeted a category of copyrighted works whose
authors are least likely to defend themselves because their
whereabouts are unknown. The media industry has taken to calling
these books, plays, articles, poems, photographs, illustrations,
and so on “orphan works.” Now the publishers want the legal right
to use these works without the rights-holders’ permission. All
they would have to do, as proposed in new legislation (S. 2913,
the Shawn Bentley Orphan Works Act of 2008), is make a “diligent
effort” to locate the rights-holder which is “reasonable and
appropriate” according to government standards for “best
practice” overseen by copyright experts hired by libraries. Such
searches would be beyond the budgets of all but the largest
publishers and database companies.

This would stand copyright law on its head. Since the 1976
Copyright Act went into effect in 1978, writers supposedly had to
do nothing to enjoy copyright protection of their works. Any work
not in the public domain cannot be used without permission of the
rights-holder. This “opt-in” requirement is in compliance with
the spirit of the copyright clause in Article 1, Section 8 of the
U.S. Constitution, which vested original and exclusive ownership
of works with their creators for a limited time (currently the
lifetime of the creator plus 70 years) in order to encourage
innovation in American society. Such a bill strikes at the very
heart of capitalism’s success and the source of innovation
crucial to any nation’s cultural and economic growth. What is
really being proposed is the orphaning of our constitutional
right to copyright protection.

Should this orphan works bill become law, infringement of
copyright of orphaned works, both domestic and foreign, would be
permitted after a vague “due diligence” search for the rights-
holder. The negative impact this could have is manifold. Our
foreign trade partners who take copyright very seriously would
fight American companies encouraged by this act to raid works
summarily declared orphan after computer and phone searches. It
takes little imagination to see where this might lead.
Retaliatory raids by competing foreign companies on American
orphan works could escalate into trade wars over orphaned
intellectual property. Given the enormous role intellectual
property plays in the global market, such trade wars could easily
expand and unravel carefully negotiated international trade
agreements. Ironically, this orphan works act could damage
international trade in such intellectual property as music and
movies where the U.S. still holds a favorable trade balance.

Congress should signal an end to the decades-long indulgence of
corporate greed and insist everyone play by same the rules. It
should table the onerous bill until a more thought-through
version that respects the property rights of creators can be
crafted.

Congresspeople are very sensitive to influence during national
election years. Writers would be wise to remind their
representatives to observe the constitutional covenant with
American writers and artists. I urge all NWU members to take the
lead here, look at the two letters on orphan works currently
posted on the nwu.org website for ideas, and write your own
letters to Congress. Be sure to also send a copy of your letters
to the National Office.

Gerard Colby, trade union activist, investigative journalist and author, is currently serving his second term as the President of the National Writers Union, UAW Local 1981. Colby is co-author (with Charlotte Dennett) of Thy Will Be Done: The Conquest of the Amazon: Nelson Rockefeller and Evangelism in the Age of Oil (HarperCollins, 1995), author of Du Pont Dynasty: Behind the Nylon Curtain (Lyle Stuart, 1984), and lead contributor to Into the Buzzsaw: Leading Journalists Expose the Myth of a Free Press (Prometheus, 2003), winner of the 2003 National Press Club award for press criticism.

He can be reached at GColby@nwu.org.