Orphan Works Next Steps In House

 

NPPA Calls For Members To Oppose, Write To Reps

 

DURHAM, NC (September 29, 2008) – Now that the Senate has passed Orphan Works legislation it is up to the House of Representatives to take the next step and to act on a similar measure, H.R. 5889, proposed by Representative Howard Berman (D-CA).

The House may act on the bill today or early this week, and the National Press Photographers Association is calling on its members to voice their opposition to the House bill as quickly, and loudly, as possible.

On Friday the Senate "hotlined" and passed by unanimous consent S. 2913, the Shawn Bentley Orphan Works Act of 2008, after being pushed to pass the act by heavy pressure from the library community where the bill was encouraged and supported, despite wide-spread opposition from the photographic and visual artists' communities.

Roll Call, a newspaper that's been covering Capitol Hill since 1955, explained how a bill can be "hotlined":

The Senate Majority Leader and Minority Leader must agree to pass [a bill] by unanimous consent, without a roll-call vote. The two leaders then inform members of this agreement using special hotlines installed in each office and give members a specified amount of time to object - in some cases as little as 15 minutes. If no objection is registered, the bill is passed.

So a bill can pass the Senate by "unanimous consent" even if some Senators don't even know about it.

Under the cover of Congress meeting to address the nation's financial crisis and negotiate a $700 billion bail-out package with the White House, and while the nation was distracted Friday night watching the first televised presidential debate, "hotlining" was used to pass the Orphan Works Act, a copyright amendment that is a piece of special interest legislation.

There are reports that S. 2913 had been "hotlined" twice before (last year during the summer, and both times it was at the end of a week or near the end of a session), but each time at least one Senator came forward to object, which put a hold on the bill. Friday night no Senator came forward to object and Orphan Works passed by unanimous consent.

More than 70 organizations, including NPPA, along with more than 100,000 petition signers online, have been opposed to the Orphan Works legislation.

"Many of our members may not yet know how damaging Orphan Works is for photographers," NPPA president Bob Carey said.

"I'm concerned the House may act on their bill early this week," Carey said.

The House version of Orphan Works, H.R. 5889, had been passed from Subcommittee to Full Committee. The House could act on their own measure, or they could "fold" H.R. 5889 and recommend moving to simply adopt the version that passed in the Senate.

 

NPPA president Carey has written this urgent letter to NPPA members:

Dear Members,

I am writing to alert you that late Friday the Senate passed the Shawn Bentley Orphan Works Act. This bill was passed by unanimous consent and forwarded to the House of Representatives. It is now a real concern that the House of Representatives will adopt the Senate version or amend their own bill H.R. 5889 to match.
 
As your president, I have written to members of the Senate and House expressing outrage over this action. But my feelings about the matter mean nothing unless legislators hear from you, their constituents.

I implore you to immediately contact your representatives in Congress and urge them to oppose this bill. Without a widespread and overwhelming grass-roots message from photographers and visual artists voicing opposition to this draconian law it will be enacted. Once that happens it will eviscerate any real copyright protections for our images and those who infringe upon our livelihoods will be able to do so as the cost of doing business.
 
According to the language of the bill, even if held liable for copyright infringement "an award for monetary relief (including actual damages, statutory damages, costs, and attorney's fees) may not be made other than an order requiring the infringer to pay reasonable compensation to the owner of the exclusive right under the infringed copyright for the use of the infringed work." The bill defines the term "reasonable compensation" to mean: "with respect to a claim of infringement, the amount on which a willing buyer and willing seller in the positions of the infringer and the owner of the infringed copyright would have agreed with respect to the infringing use of the work immediately before the infringement began."

To make matters even worse, the legislation goes on to state that "an order requiring the infringer to pay reasonable compensation for the use of the infringed work may not be made ... if the infringer is a nonprofit educational institution, museum, library, archives, or a public broadcasting entity, or any of such entities' employees acting within the scope of their employment, and the infringer proves by a preponderance of the evidence that: (i) the infringement was performed without any purpose of direct or indirect commercial advantage; (ii) the infringement was primarily educational, religious, or charitable in nature; and (iii) after receiving a notice of claim of infringement, and having an opportunity to conduct an expeditious good faith investigation of the claim, the infringer promptly ceased the infringement."
      
Organizations – such as the American Library Association – have been bombarding Congress in support of this legislation. It is essential that creative professionals do the same. This is not to time to be complacent!

You can read the text of the Senate bill here.

You can easily write to your Representative using this link, or this link.

NPPA will continue to advocate for our rights and will keep you updated on this important legislation, but it is up to each and every one of you to voice your opposition.

Yours Truly,

Bob Carey

NPPA president

 

Carey's letter sent on Saturday to Rep. Berman, chairman of the House Judiciary Committee, expressing NPPA's objections to Orphan Works legislation can be read online here.

Sponsored by Senator Patrick Leahy (D-VT) and co-sponsored by Senators Robert Bennett (R-UT) and Orin Hatch (R-UT), the Orphan Works Act that passed by unanimous consent on Friday night had an amendment that was proposed by Senator Jon Kyl (R-AZ). The amendment modified and specified provisions relating to what constitutes a "diligent" search effort to find the copyright owner, as well as a guide to searches and practices for use.

If the Orphan Works legislation passes the House and is signed into law by the President, the U.S. Copyright Office will have to oversee the development of, and then verify, at least two private and independent databases of copyrighted works that are searchable. The cost of the development of these databases have been one of the points those opposed to the Orphan Works Act have protested.

The Senate bill requires that the Orphan Works Act would take effect whenever two such databases have been verified or January 1, 2013, whichever comes first.

The Senate bill was named after Shawn Bentley, and former aide to Hatch who years ago started work on a bill that would allow the use of works whose copyright owners cannot be found, one of many intellectual property right bills he worked on before he died in 2005 at the age of 41.

Supporters of the Orphan Works Act include the American Association of Law Libraries, American Association of Museums, American Library Association, Association of American Universities, Association of American Publishers, the Library of Congress, College Art Association, Association of Public Television Stations, and the Computer & Communication Industry Association.

A detailed article about Orphan Works and the legislation by NPPA Advocacy Committee chair and NPPA past president (and law student) Alicia Wagner Calzada, which was published in the August 2008 issue of News Photographer magazine, is online here.

 

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