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Oh, man. If you’re a webcomic author who has been cruising the social media in the last few days, chances are you’ve come across a volatile posting or reposting by a friend or someone in the business you follow warning of an impending apocalypse along the lines of “In three days Congress is going to flush your copyright down the toilet!”
The hubbub is over the Orphan Works Act. Which isn’t actually an Act. It’s not even close to being considered as an addendum or repeal of current copyright law, much less being a looming Armageddon requiring immediate and drastic action. Yet that didn’t stop some inflammatory posts from well-known people that fanned the flames of panic.
I understand. Creative artists tend to be busy people, and for that matter people who would rather be thinking about their stories and art projects than the complications of the business side, so when someone they trust (or who at least seems to know what they’re talking about) starts shouting that the sky is falling and it’s ALMOST TOO LATE, it’s far easier to take up the cry than take a breath and have a cautious look outside first.
As you might be getting, things weren’t quite as dire as first presented. You can read up at a couple links here, which also include links to the actual report from the U.S. copyright office and some of the hyperbolic posts and videos that started the whole mess.
http://www.teleread.com/copy-right/orphan-works-copyright-law-controversy-dont-panic/
I myself found it odd when the “news” first blared across my feed because not a week beforehand I had attended not just one but three different panels at San Diego Comic-Con discussing IP law, and not one of the professional lawyers on those panels had brought up any impending catastrophic changes along the lines of an invalidation of copyright law As We Know It. You would think that would be important to them since a large part of their livelihoods kind of hinge on it. Not a peep, which is even more odd when you consider the proposal in question has been published since early June, making it unlikely they wouldn’t have heard of it by early July.
Well, yeah, for one thing it’s just a proposal with absolutely no legal weight to it. Brainstorming. Asking for commentary, good or ill. It’s like your buddy saying out loud, “Wouldn’t it be cool if they made grocery stores donate all their just expired food instead of throwing it out?” and then looking around at the rest of you to see if anyone wants to chime in on the idea.
Confusion might have arisen because the text of the report resembles earlier attempts at revisions to copyright law in the case of orphan works. Orphan works are basically those creative works where the author or other copyright holder(s) cannot be found, leading to a difficult decision for people or companies wanting to make use of them, especially in for-profit enterprises: go ahead, and risk an expensive lawsuit if and when the copyright holder turns up later on? Or forego the use entirely because of that risk? The revisions are trying to address this conundrum by limiting the liability of parties who make use of such an orphan after a “good faith”, reasonable search for the owner has turned up nothing.
Now, the sticking point here — if such a revision were ever to find itself actual law — would be defining what constitutes evidence of reasonable good faith, should the artist of Illustration X suddenly turn up after his 10 year self-exile to a desert island with evidence that he owns the copyright and he sues seeking damages for infringement. I’m not an expert, but a good portion of the text seems devoted to establishing things that ought to be done at minimum for good faith liability protection to apply, for example checking with the copyright office, searching online databases, etc. To run with the orphan analogy, the court wouldn’t (or at least shouldn’t) accept a defense of “Hey, I found this kid wandering the street by herself and I shouted for her parents but nobody came, so I took her home with me.” You’d need to show you checked with the police, etc. etc. Similarly, the stuff I’m reading as written is no carte blanche to ignore copyrights.
But again, it’s just in a brainstorming stage at this point. Is it good to keep abreast of changes in copyright doctrine and other legal issues as an independent publisher? Sure, absolutely. That’s why I went to those panels I mentioned. For example, if you want to talk dilution of copyrights, there’s already a situation out there that I don’t hear a lot of peers talking about, which goes by the moniker of “transformative doctrine“. According to a law professor at one of my Comic-Con legal panels, transformative use has become the number one defense in the majority of cases dealing with copyright infringement in the United States, probably because cases like this got decided in favor of the defendant. Or this one (first ruled for plaintiff, then defendant on appeal). Suddenly all that fan art being sold in Artist’s Alley might not be as cut-and-dried illegal after all, eh? I mean, that’s not even copying and pasting someone else’s photographs, touching them up a tad and selling them for thousands of dollars like Prince did.
In any case, what’s not so good is panic, and especially panic that stresses out a class of people (creative artists) who really don’t need any more stress in their lives. So deep breaths, folks. The orphanage isn’t on fire just yet.