Double Jeopardy . . .
Stock Asylum Staff Report
Sept. 14 , 2006
As if one orphan works legislative package were not enough, Rep. Lamar Smith, has included the same language in a larger copyright bill introduced earlier this week, effectively placing the same proposal before Congress in two forms. A spokesperson for Smith said that, while both bills remain active, the Congressman will now focus on the new legislation.
Fortunately for professional photographers and illustrators, many of whom oppose several provisions of the proposed Orphan Works Act (HR 5439), the new legislation has already hit its first snag after the American Society of Media Photographers (ASMP) and other professional organizations contacted members of the House Committee on the Judiciary to express their concern about the bill.
The new bill (tentatively named HR 6052) had been placed on the markup calendar for the House Judiciary Committee meeting Wednesday, just two days after it was introduced by Smith, chairman of the Subcommittee on Courts, the Internet, and Intellectual Property. Smith is a Texas Republican.
However, the bill was dropped from the committee schedule at the beginning of the session.
While it could still make it onto the committee schedule later, ASMP considered the change a minor victory in efforts to improve any Orphan Works legislation that might eventually pass the U.S. Congress. The organization would like to delay passage of Orphan Works legislation at least until the next session of Congress.
"Every day we get closer to the election and the end of this Congress is a day that benefits individual artists," said Victor Perlman, general counsel for ASMP.
As the current session winds down, he said, "Time is essentially on our side, but it is by no means enough of a factor at this point to make sure that this legislation is just academic."
Postponing the bill to the next session of Congress could benefit photographers, illustrators and others opponents of the current version by giving ASMP and others the chance to negotiate additional improvements, Perlman said. He noted that a change in the House majority could make a considerable difference in negotiations. Democrats are hopeful they can turn discontent with President George Bush's policies into a legislative coup this year.
"It certainly switches the balance of power, but it is hard to say that a theoretical change in Congress would turn into a real one," said Perlman. He suggested that Democrats tend to be more friendly than Republicans to small businesses run by individuals. But, he added, Democrats also are more likely to support free access to information.
Nonetheless, Howard L. Berman, of California, and John Conyers, Jr., of Michigan, both Democrats, have appeared most sympathetic to concerns about the legislation, Perlman noted. Berman is the ranking Democrat on the Subcommittee on Courts, the Internet, and Intellectual Property, which is part of the House Committee on the Judiciary.
In a letter to its members, ASMP noted that the orphan works provisions were deep in the new legislation, which is primarily aimed at the music industry. The orphan works section is on pages 86-96 of the 100-page "Copyright Modernization Act of 2006." The language of the orphan works section is identical to that in HR 5439, which was introduced last spring. To read the language, click here.
"It's not really an end run at this point," said Perlman, "It's just part of the continuing efforts to get this legislation passed during this session."
Perlman noted that the new legislation is strongly opposed in some corners of the music industry, making it potentially more controversial than the Orphan Works Act by itself. As a result, its chance of passage may be slim, he added.
Orphan works legislation would make it easier to use copyrighted materials when the copyright owner is unknown or cannot be found. Illustrators and photographers oppose it because their creations often are published without proper attribution, making it harder to locate the owner. Attribution is rarely printed with stock photography and illustration.
HR 5439 is a considerable improvement over legislation proposed by the U.S. Copyright Office early this year. The original proposal was favored by many image users like publishers and museums. Despite the changes, ASMP has called the legislation "fundamentally flawed."
ASMP's wants Congress to amend the bill to require that the U.S. Copyright Office make its collection of copyrighted images searchable online; change provisions limiting monetary and injunctive remedies; and make other improvements favorable to image creators.
Perlman said Congress will likely enact some kind of orphan works legislation eventually. "Orphan works legislation is not going to go away," he noted. "Our goal at this point is to come up with a bill that is reasonably fair."
The ASMP web site is at: http://www.asmp.org.
