Monday, October 06, 2008

RIP The Kidnapped Works Bill--veinglory

If you have not been following the passage of the orphaned works bill I would suggest looking it over. This bill would have effected not just works created in the US, but any and all works illegally used within the US. It is opposed by a roll call of creative groups and association and celebrated only by Software and Information Industry Association, Register of Copyrights, College Art Association and Public Knowledge. The following is written from my amateur perspective re: the US legal system, please let me know if I have misinterpreted what is going on.

Essentially at this point any person using a creative work must be able to show either that they created it, or that the right to use it has been given to them by way of signed (or electronically signed) agreement (e.g. a contract). Under this proposed bill the user need only show that they made a "reasonably diligent" effort to discover the original creator--and if the creator contacts them and they withdraw the work they are immune from paying damages (currently they could be liable for damages of up to $150,000). It takes very little imagination to see this as being useful to pirates who could make even more extensive use of their policy of 'it is easier to ask for forgiveness than to gain permission'. In fact, under this bill it would be a lot easier.

As it happens I am very sympathetic to museums and archives needing to assert some kind of ownership over their archived material, but I think a bill tailored to that specific purpose would be far more appropriate than declaring open season on all creative works that stray into the US or onto the internet somehow. It has been my reading of the bill that although most of the discussion has centred on visual arts, written works are equally affected.

I am weak in understanding the bill passing process in the US, but the proposed act seems to have passed the senate and been passed to the House Judiciary Committee. However it is stalled from passing into law as it will not make it through this year's congress . However I rather assume it will reappear before Congress at some later point. Should that occur I hope to see writers adding their collective voices to the opposition, potentially including EPIC and other associations formally joining the anti-bill efforts. Currently the only writers group officially opposing the bill is the National Writers Union--which I feel is something of an embarrassing situation.

The Bill

1 comment:

Anonymous said...

I'm glad the bill is dead. So many of our representatives have little to no concept of what creative works are in this day and age or how they relate to this modern world of technology and instant transmission.

"As it happens I am very sympathetic to museums and archives needing to assert some kind of ownership over their archived material..."

I am still very much against universities and libraries claiming false copyright over works that have passed into the public domain simply because they own physical copies of said works. I understand they're hard up for cash sometimes. So is everyone else. It doesn't mean that Yale has the right to restrict access to scans of Le Chevalier de la Charette or charge users a fortune to access the Lancelot-Graal Cycle. (Can you tell I've run into the post-collegiate access problem?)

Owning a copy of a book entitles you to do just that..own the book. If you own the last copy of a public domain work or one of the few extant copies, the creative work contained within that copy belongs to the people of the world, and you are ethically (and recently legally) obligated to do everything within your power to make that work available to the general public, free of charge.

Technically, someone could sue them for watermarking public domain images of manuscripts and books, because '"sweat of the brow," or scanning/transposing texts or images doesn't constitute creation of a new work or a derivative work. Just like there are dozens of publishers reprinting old classics, there should be plenty of options for accessing valuable creative works, and such access should not come with a price tag or restrictions that prevent those outside of the upper class and secondary education from obtaining it.

There's a fascinating article on these dilemmas by a former president of the Society of American Archivists: