Copyright under fire
Act could strip design protection
By Susan M. Andrews -- Furniture Today, June 18, 2006
Washington — A proposed amendment to the federal Copyright Act called the Orphan Works Act could put much of the furniture and fabric industry's copyright archives into the public domain, according to domestic fabric suppliers and others who are building a coalition to oppose the bill in Congress.
Museums and libraries crafted the Orphan Works legislation, H.R. 5439, so they could create exhibits and souvenirs with materials like books, music and photographs whose copyright owners could not be identified, without fear of lawsuits.
But opponents say the language is too broad and will apply to all copyrighted works and all commercial uses.
The bill's sponsor, Rep. Lamar Smith of Texas, is pushing to get the bill before the House Judiciary Committee for a vote within 50 days and hopes to have it signed into law by the end of this year, according to Corinne Kevorkian, senior vice president and general counsel for fabric source F. Schumacher.
"We are trying to get the word out to the industry that they must take action quickly to prevent passage of the Orphan Works Acts," she said.
The term "orphan" refers to a creative work whose copyright holder can't be located.
Roger Berkley, chairman of the National Textile Assn.'s Upholstery Fabrics Council and CEO of fabric source Weave Corp., called the bill "a very serious threat."
"In the battle to defend what's left of the American decorative weaving industry, the remaining big weapon in the arsenal of U.S. producers is our intellectual property that includes not only our recently developed designs, but our archives as well," Berkley said. "The Orphan Works Act promises to strip us of our archival property rights and permit offshore vendors to appropriate our work."
Kevorkian said the bill "essentially legalizes infringement. This is a terrible piece of legislation for our industry, and anybody who creates or commissions designs will be affected."
Under the proposed law, Kevorkian said, "if you come across a piece of art — a textile pattern or anything else, and there's no identification on it, if you do a reasonable search and can't find the author, you are free to use it with impunity."
Moreover, she said, if a pattern doesn't have a name on it, finding the author could be difficult. There's no image recognition technology available that can match a pattern with its creator.
"So the infringer can say he did a reasonable search, and under this proposed law the copyright owner is only entitled to reasonable compensation — assuming you ever knew about the infringement — which would not cover attorneys fees in most suits," she said.
Megan Gray, a Washington intellectual property attorney representing fabric producers, said that under current copyright law, damages for infringing a design are much higher. They can include a competitor's net profit from the infringement, statutory damages as high as $150,000, and attorney fees, "which can be massive," she said.
"For years, the guiding principle in the design world has been, 'If you didn't create it, don't use it.' With this new legislation, that principle will be turned on its head," said Gray.
Kevorkian also said the proposed amendment would violate international copyright conventions.
Andy Counts, CEO of the American Home Furnishings Alliance of U.S. furniture manufacturers and importers, said his group also has issues with the law.
"Based on our preliminary discussions, we will be working with our allies in Washington to address several concerns with the proposal," Counts said. "The current draft uses broad definitional language that impacts items beyond its intended scope. We are confident that these issues can be addressed to our satisfaction."
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