Hi, thanks for commenting! You’re right; as I said in my post, the Orphan Works Act in its current form is definitely not good for artists. My suggestion was to make an official, government-run database for works known to be orphaned, and anything outside that database would be presumed not orphaned… which I think would preserve the intent of the bill, while still protecting artists.

I’ll remind you that for visual works the Act doesn’t go into effect for another 5-6 years (depending on which version of the bill you read), and even then, the Copyright Office has to do another report on the availability of visual databases.

That being said, I do very much hope that the bill doesn’t pass in its present form. Trying to get artists to archive every bit of visual art they’ve ever made is insane.

I didn’t mean to indicate in my post that I support the Orphan Works Act as it stands. I was simply trying to think of ways it could be altered to keep artists from having to go to the trouble and expense that you mentioned.

Many people incorrectly assume that all content is digital and it would be effortless to submit them to a database. There are plenty of works that are anything but digital. And the expense, alone, to comply with this attempted effort to protect one’s work would bankrupt rightsholders.

And what about the victims of Katrina? Many of those people were creators of original content and the lost everything. There is no way they or their heirs would be able to participate in this plan.

And let me remind you that the technology for the visual databases is not yet 100% guarnteed to match one work with another. Under these bills, the law would be enacted regardless- and we would see countless number of images instantly designated as orphans. The technology will not be ready for at least 10 years.

For these reasons and more, these bills are just plain unacceptable.

Your art wouldn’t be orphaned, though. The Copyright Office database would be of works that are known, with as much certainty as possible, to be orphaned… I don’t know how much data that would be, but surely it would be a finite amount.

Therefore, anything not already in the database would be presumed copyrighted. Anyone could submit a possible addition to the database, but the Copyright Office would have the final word.

A friend of mine pointed out that a private company could charge a fee to perform the search for a possible orphaned work, and agree to assume legal liability in the event of a future lawsuit (which might well result from a false negative). I suppose the company would operate a bit like an insurance company in this respect, although of course it would have an incentive to not make mistakes and not get sued, to keep its profit margins relatively high.

If this imaginary database happened, and I was the webmaster, I would definitely publish an RSS feed of new additions to the database so that artists could make sure their work hadn’t been accidentally included.

The point is, I think this database thing has to be flipped on its head if the bill’s going to work at all… there’s a whole world of art out there, and it makes no sense whatsoever to try and index 99.9% of it in order to solve a problem affecting the other 0.1%.