The Electronic Frontier Foundation's Hugh D'Andrade -- a professional designer and illustrator -- and EFF Staff Attorney Corynne McSherry produced a great piece and podcast about why artists need to support Orphan Works legislation. There has been an enormous amount of FUD about this -- people saying things about the proposal that just aren't true. It's nice to have someone clear the air, finally.
The Orphan Works legislation would help resolve those fears and, in the process, encourage the display and re-use of these “lost” works. Under the proposed law, individuals who would like to use an orphan work must put diligent effort into searching for the owner of the copyright in the work, based in part on best practices to be outlined by the Registrar of Copyright. If that search comes up empty, they can use that work. And, if at some future time the copyright owner comes forward to demand payment, the legislation requires the second author to negotiate with that owner in good faith to determine reasonable compensation for the use, and promptly pay that compensation.
And if the second author doesn't follow the new rules under the law and simply uses the work without making a diligent search? The copyright owner can sue them under the current rules and potentially obtain statutory damages of up to $150,000 per work -- just as they can now.
Congress also plans to certify searchable databases for visual works like photographs, graphic arts, and textile designs that will collect information about works and contact information for the related copyright owners. There are not “formalities” associated with these databases. No artist will be required to “register” with the databases, and failure to register will not result in it being considered “orphaned.”
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