The last time an orphan works bill surfaced in the House of Representatives was a couple months before Hurricane Katrina hit New Orleans. A number of artists attending a Small Business Administration roundtable in New York on the orphan works legislation at the time proposed a “Katrina exception” to the bill for artists of all copyright categories who had lost their records in a natural disaster. Katrina was on everyone’s mind at the time, but the concept applies to all natural disasters.
The controversial “Transparency in Music Licensing and Ownership Act” (HR 3350) being carried by Corpus Christi Congressman Blake Farenthold (R-Corpus Christi TX) among others may not be called an orphan works bill, but because of the Draconian formalities it imposes on songwriters and recording artists it may as well be. (The Dickensian bill has already been panned by Billboard and NPR, among others–the only ones cheering are the anti-artist lobbying behemoth the MIC Coalition and its multi-trillion dollar members.) Unless songwriters and recording artists can each come up with all the many fields of information required by the legislation among other formalities (and have the ability to prove it) then these creators lose their rights to statutory damages and attorneys fees under the Copyright Act.
Plus, you will notice an eerie resemblance to prior orphan works legislation in HR 3350 in removing statutory damages from the penalties that creators can seek against infringers. In fact, HR 3350 goes even farther–the bill disregards prior registrations with the Copyright Office and requires that everyone who previously filed a copyright registration (that’s right–everyone who ever filed one going back to 1909) has to re-register in HR 3350’s new database. Failing to do so essentially orphans the work and the penalties then are not that different than the actual orphan works legislation–that failed miserably when introduced in prior Congresses.
And since the federal government seems much more interested in taking away private rights of creators rather than taking on enforcing the Copyright Act against companies like Facebook, Google and Amazon–without regard to whether doing so violates Constitutionally protected property rights, not to mention international treaties–it should come as no surprise that they haven’t taken into account what happens to songwriters and recording artists in a natural disaster like Hurricane Harvey. When all your back up papers are washed away or turned to melted paper, when your computers are all destroyed by flood waters and your recordings are lost, what are you supposed to do against MIC Coalition members taking advantage of HR 3350?
That’s an easy answer–you submit to the triumph of the connected class.
So if anyone is taking this bill seriously, the “Katrina exception” needs to be taken seriously as well. You would think that Congressman Farenthold would be leading the charge on this issue since he represents Corpus Christi, Rockport, Port A–or ground zero for Hurricane Harvey.