ASJA Protests FEMA Restrictions on Free Speech

July 24, 2006

As Congress considers the Orphan Works Act of 2006 (H.R. 5439), the rights and livelihood of creators of copyrighted work are at serious risk. The American Society of Journalists and Authors, America's leading organization of independent nonfiction writers, is strongly opposed to the bill, and urges its defeat. While ASJA recognizes a clear need for a law to address the problem of genuinely orphaned works, it also sees glaring loopholes in the Act as currently drafted that could lead to piracy.

The problem is that too many literary and artistic properties risk falling into the category of "orphan works," against the will of their creators, says Jack El-Hai, president of ASJA. "The currently proposed legislation is flawed because it makes it too easy to violate the copyrights of journalists and book authors - as well as other creators - who could be located if a genuine effort were made." (The Copyright Office defines "orphan works" as copyrighted works whose owners are difficult or even impossible to find.)

If enacted, the bill could deprive creators who can't be readily located of three

crucial freedoms:

* To control how, when, where, and by whom their work is used.

The Act makes it legal for anyone to use a copyrighted work for any purpose without the copyright owner's permission, as long as a "reasonably diligent search" is made for the owner.

* To earn income, in some cases sizable sums, from licensing their work to others.

In effect, the Act creates an involuntary license to use literary or artistic orphans-for free, unless the owner learns of the infringement and comes forward.

* To collect statutory damages if their copyrights are infringed.

Even if creators discover the violation, all they are entitled under the act to is "reasonable compensation," but not any additional damages or attorneys' fees, even if the work was registered with the U.S. Copyright Office. The bill also lacks monetary remedies if the infringer negotiates a reasonable fee, but fails to pay.

Weakening copyright protection is bad for professional writers - and the public. Losing these rights if the Orphan Works Act of 2006 becomes law could well discourage America's creators from producing future works to inform, inspire, challenge and entertain audiences. For these reasons, and fundamental fairness, ASJA advocates a different legislative approach. "We would support a law that reduces obstacles to using orphan works that are non-commercial in nature, such as diaries, letters, and personal papers," says El-Hai. Such a provision would be beneficial to scholars, without taking money out of the pockets of professional writers.

ASJA joins the Authors Guild in calling upon the Copyright Office to establish a publicly available, searchable online database in which users of orphan works file a form affirming that they made a diligent search for the copyright holder, and listing the steps they took to locate that person or organization. This would help deter potential pirates, since people who planning to abuse the system would know that their affirmations were be on public display, readily accessible to creators they contended were impossible to find.

Founded in 1948, the American Society of Journalists and Authors is the nation's leading organization of independent nonfiction writers. Its membership consists of more than 1,100 outstanding freelance writers of magazine articles, trade books, and many other forms of nonfiction writing, each of whom has met ASJA's exacting standards of professional achievement.


MESSAGE TO WRITERS:

Please read ASJA's statement, "Orphans and Pirates: Why ASJA Opposes the Orphan Works Act of 2006," and let your senators and representatives know how you feel about the proposed legislation. Feel free to use or adapt this letter:

Dear _____________

As a constituent, professional journalist, and author, I'm strongly opposed to the Orphan Works Act of 2006 (H. R. 5439). If enacted, it put the rights and livelihood of creators of copyrighted work, like me, at serious risk. While I see a need for a law to address the problem of genuinely orphaned works, there are glaring loopholes in the Act as currently drafted that could lead to piracy.

The problem is that too much literary and artistic property risks falling into the category of "orphan works," against the will of its creators. The proposed legislation makes it too easy to violate the copyrights of journalists and authors who could be located

if a genuine effort were made. Specifically, if enacted, the law could deprive creators who can't easily located of three crucial freedoms:

* To control how, when, where, and by whom their work is used. The Act makes it legal for anyone to use a copyrighted work for any purpose without the copyright owner's permission, as long as a "reasonably diligent search" is made for the owner.

* To earn income, in some cases sizable sums, from licensing their work to others. In effect, the Act creates an involuntary license to use literary or artistic orphans--for free, unless the owner learns of the infringement and comes forward.

* To collect statutory damages if their copyrights are infringed. If creators discover the violation, all they are entitled under the act to is "reasonable compensation," but not any additional damages or attorneys' fees, even if the work was registered with the Copyright Office. The bill also lacks remedies if an infringer negotiates a fee, but fails to pay.

Weakening copyright protection is bad for professional writers - and the public. Losing these rights if this bill becomes law could well discourage America's creators from producing future works to inform, inspire, challenge and entertain audiences. For these reasons, and fundamental fairness, I advocate a different approach. I'd support a law that reduces obstacles to using orphan works that are non-commercial, such as diaries, letters, and personal papers. That would benefit scholars, without taking money out of the pockets of professional writers like me.

I hope I can count on you to do the right thing for America's creators--and vote against H. R. 5439. Or if you support it, I urge you to amend it so copyright owners whose work is infringed are entitled to statutory damages and attorneys' fees. Another crucial protection is for the Copyright Office to establish a publicly searchable online database in which users of orphan works must affirm that they've made a diligent search and list steps they've taken to find the owner. This would help deter pirates, since they'd know their affirmations would be accessible to the copyright holders they claim to be unable to find. Thank you for your time and consideration.

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