It's time for NWU members and other writers to submit comments to the U.S. Copyright Office once again. It was very helpful when we did it in 2012, so we need to do it again. The idea of an "orphan works" law just won't die. An orphan works law or an expanded definition of “fair use” would let anyone who claims they can't identify or find whoever they think holds the rights to your copyrighted work have the right to use, copy, or even publish your work for free without your permission.
Here are a couple of scenarios about orphan works: You published an article or poem in a magazine long out of print. If a library has a copy in its collection, but can't find the magazine publisher (out of business?), they could call it an “orphan," scan it, and publish it on the Web. Say, your book has been out of print for years, so you self-publish your own e-book. If someone can't find the publisher of the original book, they could call it an "orphan" and issue their own edition without your knowledge or permission, which would compete with your e-book and deprive you of income. Or a story posted on your blog could be plagiarized on another Web site without your knowledge, permission, or payment.
So much for your ability to resell or republish your backlist work!
You can help NWU prevent a disastrous so-called “orphan works” law by submitting comments to the Copyright Office by May 21. Fill out the form on the US Copyright Office website and attach a file of your letter. The link to the NWU sample letter is provided here, or below.
You can use our sample letter, but it will be much more effective if you tell your own story. Examples of how you are earning money from stories, articles, Web content, books, or excerpts whose original editions are listed in bibliographies and library catalogs as "out of print" will be extremely helpful.
Please spread the word to NWU members and other writers. This is our final opportunity to be heard before the Copyright Office makes its recommendations about "orphan works" to Congress.
Thank you for making NWU’s advocacy much stronger!
Orphan Works Comments: Form Letter (download as a .doc file here)
Submit electronically at www.copyright.gov/orphan/comment-submission
Re: Orphan Works and Mass Digitization
(FR Doc. 2014–02830; Copyright Office Docket Number 2012-12)
Dear Ms. Pallante:
I endorse comments to the Copyright Office submitted by the National Writers Union. As a working writer, I oppose any "orphan works" legislation or any interpretation of “fair use” that permits use of my work without my permission or restricts my remedies for copyright infringement because someone claims they were unable to identify or locate me or any person or entity they thought held certain rights to my work.
Proposals for "orphan works" legislation and expanded interpretations of “fair use” fail to consider ways working writers earn our living. Under the Berne Convention, an exception to copyright for “fair use” or other use of “orphan works” is permitted only if it "does not conflict with normal exploitation" of the work. But, as far as I know, the Copyright Office has never conducted research on the market for works whose original printed editions have gone out of print and might be deemed "orphaned.” Nor has it asked writers about new norms of commercial exploitation of our “out-of-print” works, especially via self-publication and digital publication.
“Orphan works” legislation or “fair use” cannot properly be evaluated without understanding writers' new business models that only writers can provide. If work to which I hold some or all rights is deemed “orphaned" because it is not in publishers' or libraries' records, despite the fact that I am currently earning money from it, any so-called “orphan work” would unfairly compete with and destroy the value of my rights.
Before the Copyright Office or Congress considers any "orphan works" or “fair use” legislation, I request you hold hearings to learn from writers and other creators about how we are currently exploiting our rights to our work and how such a law would affect us. No "orphan works" legislation should be considered unless it respects the rights of creators.