Copyright registry changes its terms, but will it ever really be needed?

Much has happened since I posted If copyright infringement is the poison, copyright registry is the contamination, for one thing Randy Taylor from got involved in the thread over at Burns Auto Parts blog eager to correct the mistakes in their Terms & Conditions. Kudos. Then Leslie posted in Copyright Registry fixes ;

After hearing the hue and cry of the photographer community, the Copyright Registry has made significant changes to their copy and contract terms. I think we, as a community should applaud these changes and the spirit in which they were made.

I hope I'm not mistaken for one of those unreasonable folks that digs in their heels but I still want everyone to think about the orphan rights act (which doesn't exist) for a moment. The 2006 version was stopped by protests led by the Illustrators Partnership, and the 2008 version died on the steps to the house. If we for a moment ignore the massive protests from the artist community in the United States against this proposed US law, lets think about the global law, that is The Berne Convention, and ponder where this idea fits in it. I'm done, it doesn't.

164 countries have agreed upon the idea that copyright is a passive act, that is once you create something it is copyrighted by you, and it is up to would-be-users of your copyrighted works to seek out permission for use. This works because it is simple, as an artist explained it back in 2006 “If you find a creative work, you may not know who created it, but you know you didn’t.” - and it's democratic, your holiday snapshots enjoy the same protection as Kevin Carter's famine photographs from Sudan.

The US had a different idea back in the day, they wanted people to actively seek protection for copyrighted works by registering at the copyright office, and only joined the Universal Copyright Convention (pdf link) back in 1952. It was developed by United Nations Educational, Scientific and Cultural Organization as an alternative for the states that disagreed with some aspects of the Berne Convention, but still wanted to participate multilateral copyright protection. Eventually the United States became willing to participate in the Berne convention and joined in 1989 - only to consider laws that go directly against the basic principal of it twenty odd years later. You can't have it both ways. Lets be frank here, what the proposed law will be most effective in doing is making sure that unregistered work will be considered a potential orphan from the moment it's created if it is not registered (in the US).

Where would this leave non US artists works in the legal mess this seems to create? European citizens create work in Europe and have it "orphaned" in the United States because, lets face it, registering work is both a huge time sucker and money pit, but also why should an artist whose work is protected by the Berne Convention have to?

The professional photographers over at EPUK called the US Orphan Works Act "Uncle Sams Theives Charter" for a reason.

So, while do their best to amend their TOS, I still don't think registering your work before a law even exists is a good idea. But that's of course, entirely up to you.

(if you're interested, there's plenty more posts regarding copyright here on adland from all sorts of angles - for example since Gawker's disclaimer mentioned the Leslie Kelly, et al. v. Arriba Soft Corp. case, I had a short chat with Leslie A. Kelly about copyrights)

Comments (1)

  • Dabitch's picture

    Full Disclosure: I am an Art Director, not a lawyer.

    Mar 31, 2009

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Dabitch Creative Director, CEO, hell-raising sweetheart and editor of Adland. Globetrotting Swede who has lived and worked in New York, London, San Francisco, Amsterdam, Copenhagen and Stockholm.