A bill quietly moving through Congress threatens to change the copyright law in ways that have artists, writers and other creators fighting to keep it from passing.

Titled the Orphan Works Act of 2008, the bill, if enacted, would alter the copyright protection of certain intellectual property. Artistic, written, musical, scientific and photographic works without a noted author would be open to free use, providing that the user shows proof of a "diligent effort" to search for the author.

Although many artists are passionately fighting to preserve their names and their creations, the legislation seems to be sneaking in under the radar of many local creators. Several artists, writers and musicians contacted for this story were unaware of the proposed law.

"We need to fight against this," Jenny Page, an artist and member of the Newburyport Art Association, said. "Everyone needs to fight against this."

Currently, unauthored artistic works, called "orphan works," are protected under the established copyright law, meaning although they are not attached to a specific artist, musician or poet, users of the orphan works still face penalties for infringement, leaving thousands of artistic pieces untouched and unused.

Sen. Patrick Leahy, D-Vt., explains in a statement on his Web site that the new law will provide "creative benefits" for the public, and "financial benefits" for the owners of the works, as new legislation would allow more authors and owners to be found, providing the proper compensation for their creative property.

"It means that a woman in Vermont can restore a wedding photograph of her grandparents, even if she cannot locate the photographer to get permission to do so," Leahy said.

Many artists fear that the law will open the door to copyright criminals, permitting them to access and use works without proper royalties or permission from the creator, and therefore holding back potential revenue for an already struggling profession.

"Artists have suffered enough," said Page, who lives and works in Exeter N.H. "This is just another hurdle."

Language of the law

According to the act, if an artist or copyright holder discovers unpermitted use of his or her work, he or she is entitled to "reasonable compensation" from the user. Further court action can be taken if the user cannot prove that he or she performed a thorough search for the author, providing the user is not a nonprofit organization, library, or museum. Penalties for poor searching efforts, if proven, are comparable to those of traditional copyright infringement.

But it is actively keeping up with the unpermitted use that artists find as a burden, arguing that being able to watch everyone that could possibly use the work is next to impossible, especially in an age where the Internet appears to encompass every medium.

"It's maddening and frustrating," said Page. "Why can't people just be ethical?"

Nonetheless, artists argue that the legal fees for a federal copyright trial are not feasible for a profession that is barely able to make ends meet.

"Few artists can afford the costs of federal litigation: attorneys' fees in our country vastly exceed the licensing fee for a typical painting or drawing," wrote Frank Stella in an editorial for The Art Newspaper, a publication that addresses issues of global art culture.

Kathleen Bitetti, executive director of the Artists' Foundation in Boston, argued that although the law has the potential to be a "finely tailored" bill, the lack of a "transparent" process in creating the law as well as vague wording in the document calls for a reworking of the legislation.

"There is an issue (with the orphan works), but this isn't the way to solve it," Bitetti said. "There's a lot of stuff that's missing."

In addition, artists contend that the text describing the proper search methods is too vague, leaving loopholes for infringers to find.

"This is taking money out of people's pockets," Bitetti said.

Based on databases

Advocates for the law explain that the search criteria and method will be determined by the court in which any copyright case occurs.

If passed, the bill calls for private companies to establish online databases that would allow artists to register their work in addition to cataloging existing orphan works. According to Leahy's Web site, the databases would be created with a framework provided by the Copyright Office.

All databases would be subsequently inspected and certified by that office before a list of all the approved registries are placed on the Internet.

Artists fight this proposal with the idea that registering a lifetime's collection of artwork, photography, writing, or music would be costly and time-consuming.

"Why should I pay anybody any money at all for the work I've created?" said Cynthia Turner, a member of the Illustrators' Partnership of America. "No one has the staff or time to digitize their catalog."

Turner noted that a photographer with at least 100,000 analog images would take nearly 16 years to put the photos in digital format.

The Orphan Works Act will go into effect once the Copyright Office approves these databases, however, the bill before the Senate also proposes a start date of Jan. 1, 2011, whereas the date is 2013 in the House's version of the act. For all works other than those of pictorial, graphic, or sculptural nature, the Senate-proposed effective date would be Jan. 1, 2009.

As of May 15, the Senate Judiciary Committee had voted unanimously to give the bill a favorable report, without a request for any corrections to the text of the proposed law.

Despite the act's progress through Congress, however, artists continue to fight back through letters to senators, Web site communities, and e-mail chains.

"I find this legislation scandalous and unacceptable," Turner said. "This is the most horrendous thing I have seen wrought on creators."