Orphan Works Bill Still Pending In Congress
It is increasingly unlikely that an orphan works bill, uniformly viewed as a threat to photographers, will pass during the current session of Congress. Despite support from the U.S. Copyright Office, as well as influential companies like Microsoft and Google, no such bill has been introduced in either the U.S. House or the Senate so far.
The idea is still active in Congress, however. Both the House and Senate held hearings recently on whether to make copyrighted works that have been “abandoned” by their owners available for reuse. House staffers have been holding closed-door meetings every week or so with interested parties, trying to hash out compromise language for the bill. The most recent of these meetings was held Tuesday.
Photography associations, fearful that an orphan works bill could make un-credited visual images essentially free for the taking, have campaigned vigorously against it. Getty Images and Corbis, normally fierce competitors, banded together to hire a lobbyist, Steven Metalitz, to fight the proposal, according to Nancy Wolff, attorney for the Picture Archive Council of America (PACA).
In February, several photography groups – including PACA, the American Society of Media Photographers (ASMP), Professional Photographers of America, Advertising Photographers of America and others – warned that the bill was being fast-tracked and could become law this year. They asked their members to send letters opposing the change, which was recommended in a report from the U.S. Copyright Office earlier this year.
Wolff, who has been closely following the orphan works legislation, says it is possible a bill related to orphan works will be introduced in the House later this month. Rep. Lamar Smith (R-Texas), chair of House Subcommittee on Courts, the Internet, and Intellectual Property, appears to be interested in sponsoring the bill.
There is less activity on orphan works in the Senate, where Senators Orrin Hatch (R-Utah) and Patrick Leahy (D-Vt.) have taken the most interest in it.
One big question is whether the bill will use the language proposed by the Copyright Office. The Copyright Office suggests lowering or eliminating the penalties for someone who infringes a copyrighted work if they can’t locate the owner to ask permission. Of particular concern was phrasing saying a work could be considered orphaned if the infringer couldn’t find the owner after “a good faith, reasonably diligent search.” There is no way to search the copyright office records for the owner of a photograph without already knowing the owner’s name.
As with any bill, odds are slim that it will become law, even if it is introduced.
“The chances are better that there won’t be a bill enacted than there will be,” says ASMP counsel Victor Perlman, who testified before a Senate committee meeting on orphan works April 6.
ASMP opposes the Copyright Office proposal as it stands. Perlman has proposed an alternative idea, where people wishing to use “orphans” would pay a fee to an escrow fund. The money would be used to pay license holders if they come forward later. Perlman acknowledges that while photographers and illustrators seem to like this idea, it is “very unpopular with pretty much everyone else in the world.”
Scores of people and companies filed comments with the Copyright Office while it was researching orphan works. Among them is Google, which says relaxed laws on orphan works will benefit Google Print, a project to digitize and catalog all the books from several major libraries. Artists who want to be able to reuse other work more freely, including those affiliated with the Creative Commons group, also wrote in support of the proposal.
At the two congressional subcommittee hearings held so far, people representing museums, publishers and filmmakers have spoken in favor of the Copyright Office’s proposal, since it will make it easier to use old, archived works in books and documentary films. Trade associations for illustrators and photographers oppose the proposal, since they say the law could make many visual works, usually published without credit, into “orphans.” The law would also make the penalties for misuse so low that it seldom would be worthwhile to pursue infringers, the associations say.
At the March 8 hearing on orphan works before the House Subcommittee on Courts, the Internet, and Intellectual Property, four people appeared as witnesses:
- Jule Sigall, associate registrar for policy and international affairs of the U.S. Copyright Office, speaking in support of the Copyright Office proposal.
- Allan Adler, vice president of legal and government affairs for the Association of American Publishers, also supporting the Copyright Office proposal.
- David Trust, CEO of the Professional Photographers of America, urging significant changes to the Copyright Office proposal.
- Maria Pallante-Hyun, associate general counsel and director of licensing for the Guggenheim Museum, largely supporting the Copyright Office proposal.
On March 29, the same House subcommittee held a hearing on a related matter, how best to deal with small claims related to copyright infringement.
At the April 6 hearing on orphan works before the Senate Judiciary Subcommittee on Intellectual Property, seven people appeared as witnesses:
- Sigall of the Copyright Office.
- Perlman of ASMP.
- Pallante-Hyun of the Guggenheim.
- June Cross, a documentary filmmaker and Columbia University professor, supporting the Copyright Office proposal with some qualifications.
- Brad Holland, founding board member of the Illustrators’ Partnership of America, strongly objecting to the Copyright Office proposal.
- Thomas C. Rubin, counsel for Microsoft, supporting the Copyright Office proposal.
- Rick Prelinger, board president of the Internet Archive and founder of the Prelinger Archives, a film archive, supporting the Copyright Office proposal.
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