THERE ARE NO ORPHAN WORKS
Comment to the United States Copyright Office regarding its Notice of Inquiry on Copyright Protection for Certain Visual Works.
[This came off as somewhat half-cocked; I was only made aware of the Notice of Inquiry two days before the closing date for comments, and only had time to inform myself in-brief on the issues under review and some of the proposals to address them. I failed utterly to address the five questions in the Notice of Inquiry with my comment – instead, I just bashed-out this general statement. —L.]
I am a professional illustrator, and the monetary value of my work lies solely in the legal strength of my copyright to it.
Copyright protects three groups: it protects authors of original work from exploitation of their labour-product without just compensation; it protects patron-publishers who invest in the production of new work from having their investments undermined; and, likewise, it protects rights-holders who have purchased copyrights or licenses to pre-existing work from having their investments undermined. These groups: authors, investors, and traders, are the only parties whose time, talent, expertise, and capital are involved in the production of new work and the fair trade of pre-existing work; as such, they are the only parties whose needs and rights should be taken into consideration when draughting any new copyright legislation. Any future alteration of copyright law which would weaken the protections for these groups must be seen as a failure. Moreover, any alteration of copyright law which weakens protections for these groups in order to benefit third parties who would profit by the labour and investment of others without compensating them must be seen as a complete perversion of copyright law.
The outrageous proposition of abolishing the current institution of automatic copyright – certainly the most important component of the Copyright Act of 1976 and an international tradition more than a century old amongst signatories of the Berne Convention – can only benefit parties who seek to monetize the labour-product of authors and/or the investments of patron-publishers and rights-holders without compensating them. It would be a shameful ethical regression for the United States, and a boon to pirate publishers and other copyright infringers.
The concept of "orphan works" is an absurdity. The idea that an author's work, when lacking clear attribution, should suddenly fall into the public domain is ludicrous in an age where media can be digitized, stripped of attribution, and distributed to a million Internet users in the space of an hour. Could anyone really be so morally vacuous as to think that an automobile with its VIN removed should suddenly become a free car? If a work cannot be sourced and/or rights cannot be obtained to publish it, IT SIMPLY CANNOT BE PUBLISHED outside the well-established scope of fair use. It's certainly better for authors if new work is commissioned instead, and at least commerce is taking place if alternative pre-existing works are found and licensed. Creating a system which legitimizes the exploitation of so-called orphan works can only encourage the intentional orphaning of work by unethical actors. Simply because the mechanisms do not currently exist to link all digital works back to their authors we cannot take the position that all digital works are inherently authorless. There are no "orphan" works; there are simply works that have been circulated by third parties unbeknownst to the author.
EVERY work has an author.
EVERY author is entitled to compensation for the exploitation of their labour-product.
EVERYONE is an author. Not just novelists, easel painters, recording artists, or other professional authors – EVERYONE. Moms snapping candid photos of their kids, teens writing empassioned blogs, children smearing poster paint on construction paper – they are all originators of literary and artistic works and have a moral right to the exclusive ownership of their labour-product, their intellectual property.
Any future copyright law which would only protect authors or rights-holders whose work had been registered with a private registry would be nothing short of a legal mandate for the establishment of a kind-of copyright protection racket, a system by which authors and rights-holders would have to pay protection money to enjoy the legal rights that the citizens of 167 other nations of the Berne Union enjoy for free. Furthermore, the implementation of any registration-required system would potentially invalidate the copyrights of the untold billions of pre-existing unregistered works, and that, in turn, would doubtlessly incur a frenzy of claim-jumping by unscrupulous actors seeking to register illegitimate claims.
In short, the only people pressing for orphan works legislation are people who want something for nothing – people who want to use others' work without paying, and who don't want to pay for the creation of something new. The only people pressing for registration-required copyright are those who seek to profit from the copyright-registration business. Authors, patron-publishers, and rights-holders stand only to suffer devaluation of their labour and assets and to incur an increased cost of doing business if either of these schemes are put into law.
DO NOT consider abolition of automatic copyright.
DO NOT consider the institution of a buy-in copyright system.
-- Adam Moore (LÆMEUR) <firstname.lastname@example.org> Cartoonist / Illustrator / Ace Doodler http://laemeur.com || http://laemeur.sdf.org