Reframing the Arguments on the Orphan Artworks Bill

I've been waiting for all of the (mis)information fluttering about regarding the so-called "Orphan Artworks Bill" winding through Congress to settle somewhat before ringing in. I know there are efforts to stop it before it becomes law, and while I understand the wisdom of preventing something fundamentally cumbersome and/or harmful from taking root, I also like to have a better understanding of something before I join in the effort to derail it. Someone somewhere must think this Bill solves a problem. Lawrence Lessig, a law professor at Stanford, summarized the reason Congress is tinkering with the law here, in his Opinion piece in today's New York Times:

Before 1978, copyright was an opt-in system, granting protection only to those who registered and renewed their copyright, and only if they marked their creative work with the famous ©. But three decades ago, Congress created an opt-out system. Copyright protection is now automatic, and it extends for almost a century, whether the author wants or needs it or even knows that his work is regulated by federal law.

The old system filtered copyright protection to those works that needed it; the new system regulates indiscriminately. The Congressional Research Service has estimated that just 2 percent of copyrighted works that are 55 to 75 years old retain any commercial value. Yet the system maintains no registry of copyright owners nor of entities from which permission to use a copyrighted work can be sought. The consequence has been that an extraordinary chunk of culture gets mired in unnecessary copyright regulation. [emphasis mine]

OK, so the main reason I've been hesitant to post about this before is I'm somewhat unconvinced by the stated rationales in the efforts to stop it. What I'm still awaiting is clarity on how this all applies to the visual arts and (because I understand the bold part of the text above) and what a more compelling argument would be for Congress to go back and work harder on it. My overall understanding is that this law is meant not for artworks for which the copyright is easy to ascertain and or apply (i.e., not for famous works) but for those for whom it's unclear...the non-famous orphans. Perhaps the visual arts portion of this can be as easy as submitting a jpeg to a registry for any work an artist doesn't intend to rework in the future, more or less as easily as one updates a website. It's still not clear, but I'm not sure it makes sense to simply expect the worst here as much as it does to focus on making it better. I've seen email campaigns to stop the law with claims that it will "create chaos for the artists community and a field day for everyone else to use your images anyway they wish." Many artists, to be quite blunt about it, should be so lucky. And approaching the issue from this point of view will not be very convincing I suspect. What I think makes sense to focus on here, rather than wild claims that there are greedy exploiters out there just chomping at the bit to make money off struggling artists' labor, is more clarity all the way around. As Lessing noted:

But precisely what must be done by either the “infringer” or the copyright owner seeking to avoid infringement is not specified upfront.

Also, by focusing on the elements of the bill that Lessing notes are clearly unfair, a more compelling argument can be made than those I've read which rely on imagining all kinds of dubious scenarios with highly personal implications (insert image of sinister copyright infringer twirling long mustache). The legislation in its current form seems unfair because :

[S]ince 1978, the law has told creators that there was nothing they needed to do to protect their copyright. Many have relied on that promise. Likewise, the change is unfair to foreign copyright holders, who have little notice of arcane changes in Copyright Office procedures, and who will now find their copyrights vulnerable to willful infringement by Americans.

Again, the cut-and-paste letters I've seen on some websites seem more designed to appeal to the vanity of targeted artists than the problems in the proposed legislation, suggesting (as is one of my pet peeves in such matters) that the effort is more aimed at gaining attention for those circulating the emails, than actually solving the bill's weaknesses. Telling Congress, who has mostly likely never heard of you, that this law will discourage you from continuing to make your artwork (again, which they haven't seen), probably isn't as compelling to them as it might seem to you it should be. Donn Zaretsky has been chronicling the rational objections to the legislation in terms more likely to convince your Congresscritter to reconsider, as well as helping to dispel some of the myths taking on urban legend status at this point, such as:

"One point of disagreement concerns whether the bill would require artists to register their work with commercial databases to get copyright protection .... Holland has used this point to argue against the bill in several articles. The APA used similar language in a five-page position paper published Tuesday: 'All works, professional or personal, published or unpublished, will have to be registered with as-yet-to-be-created private, commercial registries.' No such requirement appears in either bill currently before Congress, and Perlman and PACA attorney Nancy Wolff say the statement is untrue. Both versions of the amendment mandate the creation of private databases of copyrighted works to facilitate the search for rights owners, but registration would not be mandatory for all creative works."

Of course, it doesn't make any sense to wait until a bad bill is law to act here, but unconvincing arguments are probably worse than no arguments at all and there are way too many unconvincing arguments in the form letters I'm seeing circulated. Reframing the argument with two goals--more clarity is needed before the bill becomes law, and more fairness must be incorporated--seems the best use of energy here to me.