Sunday, September 28, 2008

"ORPHAN WORKS": NEW BILL LEGALIZES THEFT

The Association of American Editorial Cartoonists (AAEC) is dismayed to learn that unscrupulous members of the U.S. Senate have taken advantage of Americans' focus on the nation's financial crisis in order to pass controversial legislation that threatens the livelihoods of everyone who relies on copyright for a living.

Deploying perfidious secrecy reminiscent of the circumstances of the passage of the USA-Patriot Act, the Senate passed S. 2913, also called the Shaw Bentley Orphan Works Act of 2008 ("Orphan Works Act") on Friday, while the national media was focused on the mortgage meltdown bailout proposal. A similar bill is being considered by the House of Representatives.

The owner of a store notices a man shoplifting her merchandise. She calls the police, who arrest the man. But they don't take him to jail. Instead, they let him keep the stuff he stole. All he has to do is pay the retail price. They let him go.

Crazy? You bet. But that's exactly what Congress wants to do to intellectual property. If a cartoonist or another artist catches someone stealing his or her work, the thief gets to keep it. All he has to do is pay retail.

Sponsors of the Orphan Works Act claim they want to make it easier for libraries and researchers to reproduce intellectual property whose creators or copyright holders are difficult to find. The practical effect of the Orphan Works Act, however, would be far more sinister. 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.

"The bill enables users to exhibit orphan works if, after a thorough and documented good-faith search, they are unable to locate the copyright owners," reports the Deseret News of Salt Lake City. And there's the rub. A "good-faith search" is so broadly defined as to be meaningless.

Let's say, for example, that a book publisher wanted to print an editorial cartoon in a history textbook. Currently a typical reprint fee for such use is $250. Under current copyright law, a publisher who gets caught using such work without permission would be liable for three times the standard rate—in this case, $750. A judge could order the books impounded. If the cartoonist had to hire a lawyer, a judge could make the violator pay his or her attorney's fees. These provisions deter most would-be copyright violators.

Under the Orphan Works Act, the deterrent effect of punishment would all but vanish. If the cartoonist learned about the infringement and tracked down its perpetrator, all the publisher would have to do to avoid the triple penalty would be to claim that it engaged in an as-yet undefined "good-faith search." In the cited example, the aggrieved cartoonist would receive $250. He or she would have no way to remove the image from a book that he or she might find objectionable—say, one that advocated reprehensible political views. There would be no compensation for legal fees, or the time and effort involved in tracking down lawbreakers. And that's assuming the artist were ever to learn about the illegal usage.

In the unlikely case that an artist were lucky enough to learn that his or her work had effectively been stolen, he or she would only be entitled to "the amount on which a willing buyer and willing seller in the positions of the infringer and the owner of the infringed copyright would have agreed with respect to the infringing use of the work immediately before the infringement began." But this is no different than the storeowner who catches a shoplifter. A victim of theft is NOT a "willing seller."

Laws that encourage illegal behavior are bad laws. We hope the Senate and President Bush will join us, at least 60 other organizations representing writers and artists, and millions of Americans employed in the creative arts, in opposing the Orphan Works Act.

Ted Rall, President
Association of American Editorial Cartoonists