The American Independent Music body A2IM has published a position paper outlining their opposition to the controversial Orphan Works Act, which is rapidly moving through Congress.  

 

The law is aimed at changing a portion of U.S. copyright law that deals with musical tracks, writings, images, videos or other content whose owners cannot be easily located.

 

Prominent independent music portal Indie911 recently published the following information about concerns about the Act and its implications for the independent sector worldwide:

 

Important Changes To Copyright Law

 

Indie 911 has become aware of a new law that is rapidly moving through the Congress called the Orphan Works Act. The law is aimed at changing a portion of U.S. copyright law that deals with musical tracks, writings, images, videos or other content whose owners cannot be easily located.

Independent artists need to care about this because you usually own your own copyrights so when the Orphan Works Act talks about copyright owners they are talking about YOU!

All that an infringer needs to do to avoid the current penalties of the copyright law is show that they made a "reasonably diligent search" to locate the copyright owner, and if they cant find the copyright owner, they can use the work without permission and without exposure to statutory damagesthe infringer only has to pay reasonable compensation if they ever get caught.

The chances of their getting caught are slim to none because there is no requirement that the infringer has to publish a public notice letting the world know what they've done.

After conducting a reasonably diligent search without supervision by an independent person, the infringer can use the track for anything including a political advertisement, pornographic film, or commercial. The infringer can also manipulate the work in a sample or mashup beyond recognitionand the Orphan Works Act allows the infringer to claim a new copyright in the manipulated work!

The Orphan Works Act does not define what a reasonably diligent search would bethat is left to copyright owners to recommend in some kind of standard-setting process that is not defined in the bill. Those recommendations will not have the force of law so a court would not be obligated to follow them.

The Orphan Works Act barely defines what reasonable compensation will be.

But deciding whether an infringer has conducted a reasonably diligent search and what reasonable compensation is to be is not up to youits up to a court. Meaning you have to file a lawsuit to enforce your rights.

The only way that a copyright owner can restore the current copyright infringement penalties (including the big stick of statutory damages) is if they sue the infringer and prove in a court of law that the infringer did not conduct a reasonably diligent search. But the Orphan Works Act specifically eliminates the ability for a copyright owner who feels infringed upon to recover legal feesunless they win their case.

So that means that an independent artist is going to have to find a lawyer to take their case on a contingency that will require that lawyer to win a case in a totally new area of the law for which there is no precedent. And maybemaybeget an award of attorneys fees years later.

Who is behind this bill? We dont know. We do know that Googles lawyers have testified to the Copyright Office that they want the bill to consider a user that wants to use millions of orphan works. That was right about the time that Google donated $3 million to the Library of Congress (home of the U.S. Copyright Office). The Copyright Office is supporting the Orphan Works Act.

And what is an orphan work? Its a copyright whose author cannot be found after a reasonably diligent search in accordance with best practices.

The only music industry group that supports the legislation is the RIAA. Other groups are very concerned about the impact of the new bill on independent artists, labels, songwriters and smaller music publishers, and have presented their concerns in a concise manner. The American Association of Independent Music has posted their position paper online at http://www.a2im.org/downloads/A2IM_Position_on%20_Orphan_Works_v_1_I_2.pdf

Opponents of the bill in the indie community are concerned that this bill, if enacted, would make it very difficult to stop parties from using your music in ways you don't want or haven't consented to and it puts an even greater burden of finding infringers on the copyright owner rather than putting the burden on the user who wants to use your music.

According to A2IM President Rich Bengloff, The Orphan Works Act certainly would hurt smaller independent labels who are more likely to be harder to find than the majors. Independent labels also have less resources to do searches to find infringements and then, after finding infringements, getting compensation.

ORPHAN WORKS MAY BE PRESENTED FOR VOTE AS SOON AS NEXT MONTH.

A2IM and a handful of artists groups are the only music voices we know of working against the passing of this bill as it relates to music. Indie911 is asking for your help in contacting your representatives in the House and Senate to explain to them the harm Orphan Works could mean to your businesses.

We're asking you to contact your representatives in the House and Senate to alert them that a bill is coming up for vote that will be harmful to independent artists, songwriters, labels and musicians.

Contact info for your congressional representatives, if you don't already know, can be found at http://www.congress.org/congressorg/directory/congdir.tt.

The U.S. Small Business Administration is also watching developments on this issue. You may contact them at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it