Orphan Works Bill Is Not Yet Dead In The House
UPDATE: A staff member in Rep. Howard Berman's office Friday morning told News Photographer magazine that H.R. 5889 is "not on the schedule" for the House for today. Berman (D-CA) is the bill's sponsor.
WASHINGTON, DC (October 1, 2008) – Today's published reports of the death of Orphan Works on Capitol Hill may be greatly exaggerated.
Despite stories published on several news blogs, and a report on the Web site of at least one mainstream media and journalism industry magazine, the Orphan Works bill in the House is not dead and it can't be declared dead until the legislative session ends for the year.
At least one member of the House Committee on the Judiciary was not in favor of passing the Senate bill as of Wednesday, but there is no guarantee that his position won't change.
The House is on the receiving end of a lot of pressure to sign the Senate bill, and despite having to deal with the financial bail-out plan and the nation's monetary crisis there's no guarantee that the House won't eventually agree to the Senate's version, the Shawn Bentley Orphan Works Act of 2008.
Because there's still a chance – even if it is a slim chance – of the House taking action on Orphan Works, NPPA leaders are asking members to continue to contact their elected Representatives and to continue to voice their opposition to the measure.
Representative Christopher S. Murphy (D-CT) says that the House Judiciary Committee "ought to take the interests of artists more carefully into consideration before passing this bill out of committee."
"H.R. 5889 would limit liability for users of 'orphan works' so long as they demonstrate that they undertook a 'qualifying search, in good faith' to find the original author," Murphy said in a written reply that comes back to constituents from his District when they contact Murphy online to oppose the bill.
"Unfortunately, the definition of a qualifying search is left up to a best practices guide which has yet to be established by the Register of Copyrights. I am also concerned that this act would transfer the burden of proving copyright infringement onto the creator instead of the user, as is currently the case."
The Senate's version of Orphan Works passed by "hotlining" on Friday night and was voted in by "unanimous consent." Some house members don't like it because it does not have the protections that the House bill, H.R. 5889, has – and they feel those protections are important.
Some members of the House have said that they are still committed to seeing that an Orphan Works bill eventually gets passed.
Last week the Senate was, to use one Hill reporter's term, "hammered" with communications from library and publishing groups who were pressuring Congress to pass Orphan Works, a copyright amendment. One of the lead organizations who reportedly targeted Senators and applied as much lobbying as possible in favor of getting Orphan Works shoved through is the American Library Association.
More than 70 organizations, including the National Press Photographers Association, along with more than 100,000 petition signers online, have been opposed to Orphan Works legislation.
"Many of our members may not yet know how damaging Orphan Works is for photographers," NPPA president Bob Carey said.
NPPA's leadership has called for members to contact their Representatives in the House immediately and voice their displeasure with the legislation.
"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," NPPA's president wrote Monday in an open letter to NPPA members.
"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," Carey said.
NPPA has also delivered letters expressing the organization's opposition to Orphan Works legislation to the leaders of the Senate and the House, and to members of each committee. The House version of Orphan Works was proposed by Representative Howard Berman (D-CA).
Supporters of the Orphan Works Act include the American Association of Law Libraries, American Association of Museums, 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.
The Illustrators Partnership reports that another major supporter of Orphan Works legislation appears to be Google. In July, 2005, Orphan Works Roundtables were held by the U.S. Copyright Office in Washington, DC, where Alexander MacGilivray of Google said, "Google strongly believes that these orphan works are both worthwhile, useful, and extremely valuable. ... We expect that our use of these orphan works will likely be in the 1 million works range."
In November 2005, Google announced that it would donate $3 million to the U.S. Library of Congress to develop a plan to begin building a World Digital Library. "Google supports the World Digital Library because we share a common mission of making the world’s information universally accessible and useful," Google co-founder Sergey Brin said when he announced the donation.
The U.S. Copyright Office and the Library of Congress are the "experts" for Congress on intellectual property matters.
MarketWatch reports that Microsoft has also advocated for copyright law amendments and supported Orphan Works legislation along with Google, believing that Orphan Works legislation will liberate "an untapped wealth of information" that they should be able to publish and that the public should be able to access.
The Orphan Works Act that passed in the Senate requires only that a company make a "reasonably diligent" search to locate a copyright owner before using their work in media – including the Internet – and places limits on how much a copyright owner can collect in compensation if their copyright has been infringed.
The previous copyright laws protected copyright holders for decades, whether the copyright holder was aware of it or not.
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