http://www.tokyopop.com/alchemiclight0102/article/1425861.html

I've become aware of some dArama spreading through the community regarding something called "Orphan Works". In typical fashion many people are panicking and freaking out without first bothering to become truly informed and that's fairly easy to do because any search engine will produce a couple dozen websites from people in the creative industry who have concerns about it and the actual government article doesn't show up very readily.

Let's start at the beginning; the actual Report on Orphan Works produced in January 2006 by the United States Copyright Office.

You can also read a recent statement here [link]

If you are truly interested in getting to the truth of the matter I would suggest actually reading it; I did two years ago when it first came out. If you do choose to read it make certain you have a couple of hours and don't expect it to read like a manga or Book of the Month Club selection; it's a government report so it reads like Srs Bsns.

Naturally the first thing you need to do is ask "What the hell is an Orphan Work?" instead of "OMG is the government legalizing art theft?".

Quite simply an "Orphan Work" is a term used to describe a creative work whose author who cannot be identified and located by somebody who wishes to use the work for some purpose.

So in order for your work to be considered an Orphan the person or persons who wanted to use your work for some purpose would have to have performed and documented a reasonably diligent search in good faith to locate you, the owner , and they would have to completely fail to find you or any information which could lead them to you.

Now the Copyright Office didn't just throw this idea together, they did spend most of 2005 and 2006 meeting with concerned groups from various creative industries and talking to the actual people who could be affected by this.

Well first you have to properly view why copyright law even exists.

Most people assume it exists for the purpose of protecting creative people but the fact of the matter is that that benefit is secondary to the real reason it exists; which is to promote the progress of the Sciences and the Arts and to enrich the public and the community by exposing them to these new creative works.
The law encourages you, and I and every other creative person to create and share our creations by giving us a little miniature monopoly over our creations which is intended to make us all comfortable sharing what we have done with the world, which in turn benefits everybody.

This is why there is such a thing as Fair Use and why certain things like concepts and ideas are deliberately exempted from being copyrighted or controlled and why the law suddenly becomes very limited when the monopoly of the creator conflicts with the overriding public interest in the general creation of new intellectual and artistic works.

Viewing copyright in this manner is rather important when you consider the issue of Orphaned Works because ultimately Fair Use and Orphaned Works are cut from extremely similar cloth to say the least.

Well we can blame the law for this one a little bit and we can blame artists for this one a lot.

In the United States, on 1 March 1989, copyright law stopped requiring a Notice of Copyright to be stamped on every work.

A Notice of Copyright would consist of the exact phrase such as © 2008 Daniel A Sowers Jr.

Prior to this all sorts of notifications were required to be printed directly on the work. Between 1978 and 1989 if you didn't print your notice correctly you could lose your protection and prior to 1978 if you didn't provide a notice you received no protection whatsoever.

Understandably in the copyright climate prior to 1989 you could barely find a work that didn't contain a notice somewhere on it and it was really clear just by looking at the picture or the book who owned the rights to what.

Nowadays it's a different story. If you just look around deviantART for example how many works actually have a copyright notice written on them? Hell, how many are even signed? How many contain watermarks?

If you take the image off of the page can you tell who made it? Who the author was? Where it came from originally? What it was even originally titled?

Add in the fact that many people are ripping off your stuff, chopping it up or just simply slapping up in places like Photobucket and random Brazilian wallpaper sites and "Render" websites and the situation gets even more messy.

The Orphan Works Act was created to address the fact that so many works are out there floating around with no signature, no context, no means whatsoever to figure out where it came from or who created it.

Let's face it; people are creating new works all the time. Just in Literature we have tons of material coming out constantly all over the work and the people producing it want cover art, illustrations, and other things they may not be able to produce themselves and the climate over the last ten years or so has been shifting from "hire someone to produce" to "find something you want to use".

With this shift in attitude came a set of problems; you find a work that you want to use but you have no clue who made it, where it came from or anything. Or maybe you had a little information but you couldn't track down the owner to negotiate for licensing.

Concerns were raised that in such a situation, a productive and beneficial use of the work is forestalled – not because the copyright owner has asserted his exclusive rights in the work, or because the user and owner cannot agree on the terms of a license – but merely because the user cannot locate the owner. Many users of copyrighted works have indicated that the risk of liability for copyright infringement, however remote, is enough to prompt them not to make use of the work.

The Copyright Office concluded that such an outcome is not in the public interest, particularly where the copyright owner is not locatable because he no longer exists, deliberately vanished, or otherwise does not care to restrain the use of his work.

Since the law exists more for the benefit of the public interest and protects the creator more as a beneficial side effect the Copyright Office decided that they needed to look into these situations and perhaps begin treating then in a situation which you could consider to be very similar to Fair Use, which by the way you see very few people freaking out over despite the fact that Fair Use has been around forever.

Obviously the best way to avoid having one of your works possibly being considered an Orphaned Work is to actually put information directly onto the work itself.

I've been trying to promote people adding titles, signatures, copyright statements, watermarks and all sorts of identifiable markings on their works for years because of actual cases of art theft and copyright infringement and the Orphan Works Act is simply another reason to do this.

Actually registering your copyright is another excellent step to make yourself readily identifiable and it strengthens your protection against actual copyright infringement as well.

The point here is that if you can be reasonably identified and located your work obviously can't be declared to be orphaned.

For one, the Orphan Works Act hasn't even been passed yet and even if it does pass it is not the legalized art theft that many panic mongers are presenting it as.

This entire situation has only reinforced the fact that too many people freak out and panic without first truly understanding the situation

The Copyright Office is completely aware of your concerns, always has been aware of your concerns and continues to act in good faith to acknowledge your concerns and will ultimately craft a solution which fairly addresses all concerns on both sides of the issue from owners to users.

I for one do not see a problem with this bill and you may perceive that statement to carry whatever weight you wish.