Orphan Works: A Lame Duck Countdown: Part II

Orphan Works: A Lame Duck Countdown:
Part II. The Legislative Blueprint

12.02.08

The “legislative blueprint” for the Orphan Works Act was not drafted by the Copyright Office after their year-long Orphan Works study, but before it, by law students at the Glushko-Samuelson Intellectual Property Law Clinic.

Their Copyright Clearance Initiative (CCI) is the document that first proposed the “limitation on remedies” that would radically change international copyright law. From page 5 of the CCI proposal:

“Under no circumstances will Sec. 504(c) statutory damages, attorney’s fees, damages based on the user’s profits or injunctive relief relating to the challenged use be available against a qualified user.” http://copyright.gov/orphan/comments/OW0595-Glushko-Samuelson.pdf

This is the premise the Copyright Office adopted with only slight modifications: where the law students had proposed capping infringement fees at $100, the Copyright Office proposals changed that to an ambiguous “reasonable fee.”

And how did the student authors describe their study of the orphan works issue?

“On April 11, 2003, the Clinic held a symposium with scholars, academics and other interested parties to discuss this issue. Since then, the work of CCI has focused its efforts on devising the blueprint for a legislative solution to the ‘orphan works’ problem…and has been in close contact with various non-profit organizations, intellectual practitioners and academics…”

A footnote names the eight “clinic students” who contributed to the “legislative solution.” And among the “interested parties,” the authors cite Public Knowledge, a group now actively promoting the Orphan works bill. Copyright holders were apparently not considered interested parties, as none are listed among those invited to participate.

The Clinic authors submitted their blueprint to the Copyright Office March 24, 2005. They cited no effort to survey the potential impact of their legislative solution on commercial markets – nor did the Copyright Office three years later, when they adopted the “limitation on remedies” and proposed it to Congress in their 2006 Report on Orphan Works.

The Director of the Glushko-Samuelson Law Clinic is a long-standing critic of existing copyright protections.

In 1994, legal scholar Peter Jaszi wrote that in the new “information environment” created by the internet, authors, artists and others “may not need the long, intense protection afforded by conventional copyright — no matter how much they would like to have it.”

Copyright, he wrote, is rooted in outdated concepts of “possessive individualism.” The “romantic myth of authorship,” he argued, is a vestige of the 18th and 19th centuries “in which entrepreneurial publishers…[and] entrepreneurial writers…played out their shared conviction that the “individual [is] essentially the proprietor of his own person or capacities — and thus of whatever can be made of them.”

Professor Jaszi has criticized the US for joining the international Berne Copyright Convention, calling it “an international agreement grounded in thoroughly Romantic assumptions about creativity.” And he noted with disapproval:

“The first Act of this preeminent ‘authors’ rights’ treaty in 1886 represented the culmination of a process which got underway in the mid-nineteenth-century with Victor Hugo’s vigorous campaign for the rights of European writers and artists. Other famous ‘authors’ rallied to the cause: Gerhard Joseph suggests that the manic energy with which Charles Dickens championed international copyright stemmed from the novelist’s private insecurities about his own ‘originality.’”*

Note the scare quotes around “authors rights” and “originality.” The Professor appears to subscribe to the postmodern cliché that all art is a form of collage and that authorship and originality are merely covers for one writers “vigor” or another’s “manic energy” and “insecurities.”

Maybe so, but a working author might guess that Dickens and Hugo were merely protecting their copyrights because that’s how they made a living.

Citing the authority of postmodern critics, Professor Jaszi laments that their “critique of authorship” “has gone unheard by intellectual property lawyers.”

“However enthusiastically legal scholars may have thrown themselves into ‘deconstructing’ other bodies of legal doctrine, copyright has remained untouched by the implications of the Derridean proposition that the inherent instability of meaning derives not from authorial subjectivity but from intertextuality. Above all, the questions posed by Michel Foucault in ‘What Is an Author?’ about the causes and consequences of the persistent, overdetermined power of the author construct — with their immediate significance for law — have gone largely unattended by theorists of copyright law, to say nothing of practitioners or, most critically, judges and legislators.” -Page 12 The Construction of Authorship*

Or to put it in plain English: why hasn’t Congress harkened to some collectivist literary critics and written their debatable theories into US copyright law?

With the Orphan Works bill, maybe they will.

Yet if this were one’s goal – to impose a collectivist agenda on US copyright law, wouldn’t forthrightness be the better policy? Shouldn’t you say “we want to change the laws governing a citizen’s ownership of his or her intellectual property” -  then present the case frankly and  debate it publicly and transparently?

Wouldn’t that serve the public interest better than concealing the agenda behind a claim that you’re only amending the law to “find homes for the poor orphan works” or making the world safe for folks to duplicate pictures of grandma?

Tomorrow: How many letters did it take to trigger the Orphan Works Bill? Would you believe 215?

*Quotes from the Introduction to The Construction of Authorship: Textual Appropriation in Law and Literature by Martha Woodmansee, Peter Jaszi, Editors, Duke University Press, 1994

http://books.google.com/books?id=dpRKltgJYYwC

- Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership
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