Orphan Works has been the subject of heated conversation and debate on virtually all of the professional forums for the past few weeks. I last wrote about it in September of 2006, the last time an Orphan Works amendment died in committee on Capitol Hill. Had I not been right in the middle of an interstate move for the past month I might have had more to say on the subject in this space, but those of you who know me know I can't keep my mouth shut on such an important topic for too long.
This morning, the New York Times published an Op-Ed piece by Lawrence Lessig, a law professor at Stanford, who wrote in opposition to the Orphan Works amendment. Turns out it was the perfect venue for me to pontificate in reply and so I did (click on the hot link, above, to go to the original NY Times article). The Times thought my remarks lucid enough to revise the web page (see illustration, above) and excerpt the operative passage, the full text follows.....
Thank you for your opinion opposing the Orphan Works amendment.
Copyright protection was first instituted by Congress in 1790. The idea behind copyright protection is that it gives creators the incentive to create with the guarantee that they will be able to benefit from their creations.
Is copyright an arcane notion as some have suggested? I think not. Why? Because Congress has reaffirmed and strengthened copyright protection consistently throughout the past hundred years. The Copyright Act of 1909, the Copyright Act of 1976 (the primary basis of copyright law in the US) and The Digital Millennium Copyright Act of 1998 (passed by *unanimous vote* in the Senate) all support the notion that copyright protection is a valid and contemporary concept. The copyright laws are the basis for the licensing of rights in all intellectual property.
Does this seem like an arcane idea to you? Not to me. It seems very much alive.
There are currently two versions of the Orphan Works amendment under consideration. Of the two, I and my colleagues prefer the House version as the language is more favorable to creators than in the Senate version, which is wholly unacceptable. That said, I would prefer that neither of these bills pass.
The theft of intellectual property is as much a theft as the theft of cash... or, for that matter, a car.
If motor vehicle laws were amended to provide for the use of Orphaned Vehicles, all you would need to do is walk down the street, see a desirable parked car and scream, "Hey, anyone own this Corvette?" Hearing no response in a few seconds time, you could drive it away as yours. Having made a "reasonable and diligent effort" (self-defined) to locate the owner, is it now your car? No, it's grand theft!
Copyright law is just fine the way it is. The only ones who really want to change it are those who would like carte blanche to avoid paying for the usage of artworks. This tendency to undervalue art strikes me as odd considering that everything we know... from the clothes we wear, to the chairs we sit in, the kitchen sink, the computers we use, the web sites we visit, our cars and trains and buses and planes, coffee makers, pens, carpets, textiles, paper towels (I could go on) ...is designed by artists who deserve compensation as their incentive to continue to enrich our lives.
The Orphan Works amendments do no justice to creators, or society as a whole, and I urge all members of Congress to vote, "No."
American Society of Media Photographers