What is it?

It’s really two bills right now, one in the US House and one in the Senate. You can read the bills here:

• Senate
• House

Although titled differently by each legislative body, I’ll just collectively refer to the OWA (orphan works act).

Each covers essentially the same ground; they modify existing copyright law to address the problem of ‘orphan works’. Orphan works are materials that fall under copyright statute (they are created works) where a copyright holder is assumed to exist, but cannot be located. You might think of them as abandoned (or thought to be abandoned) pictures, text, or designs.

How did it come about?

The hubbub and attempt at legislation goes back to 2005, when the Copyright Office completed a study on orphan works. They found that the vast majority of artistic works either weren’t being copyrighted in the first place, or weren’t being renewed (the renewal rate was on the order of 15%).

This was seen as a burden for users of existing materials, especially libraries, museums and other non-profits. An example might help here.

Suppose you find a great little haiku on the Internet. It illustrates just what you want for your chapter on alliteration. Can you use it? Sure. But you open yourself up to lawsuit if the copyright holder sues. Being aware of this, you diligently search online (with Copyscape or another provider). You can’t find an owner. You check with the Copyright Office, but unfortunately, without a copyright date or name (which doesn’t appear on the work as you found it) there’s nothing really to search with. Can you use it? How about a picture of a cat for the cover of your book? Maybe an old picture torn out of newspaper…

There’s the problem. And it’s a big problem in the book publishing industry where other works are cited often and sometimes at length. As it stands now, all old works must be assumed protected and can’t be used without significant risk of lawsuit. The OWA attempts a fix to this problem. Their solution is to have approved private companies register materials digitally. Documents and other works could be searched to see who the copyright holder is.

Why is it causing panic?

The panic mirrors other hyped Internet causes. You can see an example here (and sign a petition if you like): Say no to the Orphan Works Act (viewed- when I looked- about 17,000 times and signed about 7,000 times).

When you read about the OWA (and it is likely you will see it: it’s going viral) you will see a lot of exclamation points and horrible scenarios. Most revolve around how much it will cost to register your creative work with a private company and how you will be harmed if you don’t.

The harm most mentioned is that you won’t be able to sue if you catch someone using your work without permission. There are two cases the OWA addresses:

1) You registered your work and catch someone using it. Your recourse would be the same as it is now for copyrighted material. You sue for infringement and damages. Nothing changes.

2) You don’t register your work and catch someone using it. The damages you can collect are reduced if the user did a due diligence search to find the copyright holder (you). If they followed industry standards and Copyright Office recommendations (yet to actually be determined) for the search, they are largely off the hook. They still might have to pay for the use of your work, but won’t have to pay the often extraordinary damages.

On another front, the visual artists have a bigger problem and maybe a reason to panic. My text can easily be saved in a searchable database at very little cost. I expect whatever services emerge to store my contact info without much of a charge. However, graphic artists and photographers aren’t quite so lucky. It’s simply harder to store and search visuals. Consider the difference between this blog post getting stored and the contents of a photographer’s digital camera.

Other, less well known copyright holders also have a legitimate concern. Suppose I design wallpaper. Under existing law, I own the copyright to the design (providing it is unique) and no one else can use it. Under the OWA, if someone does a search and cannot find me, they can use my design (even commercially) with reduced legal exposure. So, for the visual arts, the fear is that lower potential penalties will give their competition easy access to their previous commercial work without fear of serious lawsuit.

What’s the upside for me?

The upside for me is that digital registration for a small fee (fees have not been set yet) means I might actually start using copyright. As it stands now, I am loath to pay the $17 to get my small efforts officially copyrighted (small but highly significant and an indispensable read).

There’s no guarantee that private registry companies won’t charge as much to register with them as the Copyright Office does now. We will have to wait and see. But, if the rates are large, I’ll simply keep doing what I am doing now- not much at all.

Most freelancers online do ghost writing or work for hire. That means I don’t have any rights going in. If and when I do complete my ebook (it would be unethical to tout it here), I’ll make sure I copyright it properly and pay the going rate to do so.

So, with the exception of visual artists, this might be another tempest in a teapot. But stay tuned to see if the acts get passed or not. As a creative artist, you ought to pay attention and come to your own conclusion on whether the OWA is a problem.

You can keep up with legislative progress here: Orphan Works resource page 

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