WASHINGTON, DC (April 25, 2008) – Two different versions of an Orphan Works bill were introduced this week in the House and Senate, and while some believe they are improvements over the Orphan Works legislation that died in committee in 2006, others think that because the legislation would make more copyrighted works available for licensing – even if the copyright owners can't be found – is reason enough to oppose the new bills.
An "orphan work" is a photograph or illustration that is protected by copyright but whose copyright owner cannot be identified or located.
New to both bills is the requirement that the U.S. Copyright Office to create and undertake a certification process for the establishment of searchable electronic databases of visual works, so that the public can view orphaned works.
"Too many valuable works are unused because their creators are unknown," said Rep. Howard Berman (D-CA). "We must act to lower the legal barriers that keeps these works from the public."
Berman introduced the House version of the Orphan Works bill (H.R. 5889), and he's the chairman of the House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property.
Berman and the bill's co-sponsors feel that the potential users of orphan works often fail to display or use orphan works out of fear of being found liable for statutory damages, fines that can be as much as $150,000.
While the Illustrators' Partnership of America says the bills are "radical proposals" that could "cost you your past and future copyrights," the American Society of Media Photographers (ASMP) said they will support the House version of the bill.
ASMP president Todd Joyce sent a message to ASMP members saying that they're only taking a position on supporting the House bill because it contains a few provisions that "make it more responsive to our needs."
Joyce said the two main reasons ASMP is supporting the House bill is that H.R. 5889 contains provisions that are "better than we had hoped," and that there is speculation that the next Chair of the House subcommittee that deals with copyright legislation may not be as responsive to ASMP's concerns as is the current Chair.
"We believe that supporting the House bill will prevent us from ending up with a law that is far worse," Joyce wrote.
H.R. 5889 was introduced by Berman and Rep. Lamar Smith (R-TX) and it was co-sponsored by Rep. Howard Coble (R-NC) and Rep. John Conyers (D-MI).
In the Senate the Shawn Bentley Orphan Works Act of 2008 (S. 2913) was introduced by Sen. Patrick Leahy (D-VT) and Sen. Orrin Hatch (R-UT). It's named after Shawn Bentley, who was an intellectual property counselor for Hatch before Bentley died tragically at 41, leaving behind a wife and small children.
The act would enable users to exhibit orphan works to the public, the sponsors say, if the copyright owners are unable to be located after a "thorough, documented search." The legislation spells out the requirements that would be necessary to meet the standards of a search, and how a court can review the search to decide if it was adequate and done in good faith.
If no copyright owner is found and the material is used and then later the copyright owner comes forward, the bill requires that the user must pay the owner "reasonable compensation."
"This legislation will help bring together potential users and owners of orphan works," Leahy said in announcing the bill. "But also as important, it will allow the public to view works that may remain orphaned."
"What this bill does not do is create a 'license to infringe,'" Leahy said. "If the users do not conduct a good faith search for the copyright owner, those users are in the same boat they are in now when it comes to infringement. This bill does not change the basic premise of copyright law; if you use the copyrighted works of others, you must compensate them for it."
Leahy said, "As an avid photographer, I understand what it means to devote oneself to creative expression, and i applaud anyone with the talent and commitment to make a living doing so."
"There are thousands of artistic creations around the country that are effectively locked away and unavailable for the general public to enjoy because the owner of the work is unknown," Hatch said. "This bill represents a commitment from Congress to unlock orphan works so the general public may once again enjoy them."
"It has become clear that some orphan works law is likely to be passed sooner or later," ASMP general counsel Victor Perlman said. "Key members of the House and Senate want it; significant user groups such as museums, academic institutions, and publishers want it; and the general public wants it." ASMP says they are not opposed to Orphan Works legislation, but that their goal has been to make sure that it's fair to visual artists.
Many photographers and artists felt the 2006 bill that died in committee didn't offer sufficient protections for their work, and that legislation was opposed by photographers' groups and picture agencies.
In 2006, the National Press Photographers Association joined other media groups in objecting to the Orphan Works copyright proposal because NPPA's leaders felt the bill would make it easier for users to publish orphaned works without the copyright holders permission, and would make it harder for photographers and artists to collect money from users if their works were published without permission.
