Sky isn't falling on true protection of copyrights
Brian Carroll, E-business Editor -- Furniture Today, July 17, 2006
The proposed federal Orphan Works Act has met stiff resistance from commercial interests, including upholstery fabric suppliers. So far, however, the story has been a bit one-sided, the cries of "foul" a bit hysterical.
Furniture/Today's June 19 story on the proposed copyright legislation was not, in my opinion, an accurate description of the bill. No dilution of protection is proposed on any creative work, including fabric patterns, for which copyright ownership can be shown. And that doesn't have to be a credit explicitly appearing on the work.
The story said the proposed bill "could put much of the furniture and fabric industry's copyright archives into the public domain." Not true. Such a view misunderstands the proposed legislation.
The bill admittedly needs, and likely will get, important clarification, particularly in the area of remedies. But it's a good piece of legislation, one that restores a degree of accessibility lost in the past 25 years. Under the bill, anyone who wants to use what he or she believes is an "orphan" work, or a creative work for which the author is not known, must complete a "reasonably diligent search." If the owner is identified, "reasonable compensation" must be paid. If the owner cannot be identified, the creative work is fair game.
Despite claims by fabric mills and others that the intellectual property sky is falling, the proposed bill rightly attempts to return copyright law to its original intention, which, quoting Thomas Jefferson, is to promote "the diffusion of knowledge."
Not being able to identify a copyright owner is a real problem, and prevents much innovative work from seeing the light of day. There's the story of a photocopy center refusing to enlarge a decades-old photo from an elementary school yearbook, requested for a eulogy, because the photo's copyright owner couldn't be identified. Fabric mills' "what if" fears of potential infringements should not prevent the correction of flaws in current copyright law.
The proposed bill, even in a liberal reading, does not affect furniture makers. Furniture designs are covered under trade dress and patent law, at least where those designs have been put into production. The Orphan Works Act addresses only copyright, which applies, in the case of furniture, to images, drawings and printed designs rather than the furniture itself.
My advice to fabric mills and furniture designers is simple: Document your creative work. Create a database to archive this copyrighted work. Have something to point to and defend. Remember, even if the bill passes, its effective date is June 1, 2008. There's plenty of time for copyright owners to do the necessary documentation, which should have been done anyway.
There is no need to resort to hysterics to perpetuate distortions in Jefferson's law, and it is time (again) for copyright owners to shoulder their share of the responsibility in helping make the copyright system function more efficiently.
