Orphan Works Alternatives . . .
Stock Asylum Staff Report
April 5, 2006
Saying that proposed Orphan Works legislation would "deprive visual
artists of any real protection of their copyrights," an attorney
for The American Society of Media Photographers (ASMP) will offer a
U.S. Senate subcommittee several options that would be more acceptable
to photographers and the organizations that represent them.
Victor Perlman, general counsel and managing director of ASMP, is scheduled to testify during the Thursday's orphan works hearing of the Senate Committee of the Judiciary's Subcommittee on Intellectual Property. It will be the first Senate hearing on orphan works. A U.S. House of Representatives subcommittee held a similar hearing March 8.
A written version of his planned comments released by ASMP says the solution most acceptable to photographers would require that users of orphan works pay a reasonable licensing fee into a depository. The money would be held in escrow for owners who surface later with undistributed payments funding the depository itself, Perlman suggested.
In lieu of creating such a depository, Perlman maintained that any new orphan works law should either exclude photographs, illustrations and other visual artworks entirely or limit the use of orphan works protections to "non-commercial uses by non-profit museums, libraries and individuals.
In the last case, Perlman said, Congress should follow the Copyright Office's recommendation to create an alternative dispute resolution system for the collection of royalties, allow recovery of attorneys' fees in some cases and delay the effective date of any orphan works legislation by at least two years, allowing time for the creation of searchable databases to make it easier to locate copyright owners.
The Copyright Office, after hearings and roundtable discussions, proposed orphan works legislation in a report issued in January. Under the proposal, publishers, advertisers and others could use copyrighted materials, including stock photography, when the owners of the copyrights cannot be found or are unknown.
Visual artists and their organizations have been very concerned because photographs, illustrations and other artwork is routinely used without attribution, making it difficult to find the copyright owners. In addition, the internet has made illegal infringement common. Infringers rarely provide attribution.
Some sort of orphan works bill will likely be introduced in both the House and the Senate soon. The House has been conducting closed-door talks about orphan works with a number of interested organizations, including ASMP.
Perlman is one of seven witnesses scheduled to testify during the subcommittee hearing. He will talk second after Jule L. Sigall, associate register for policy and international affairs for the Copyright Office.
Brad Holland of the Illustrators' Partnership of America is also scheduled to represent visual artists. Testimony will also be heard from June Cross, a documentary filmmaker and visiting professor at Columbia University, Maria Pallante-Hyun from the Guggenheim Museum, Thomas Rubin from Microsoft and Rick Prelinger from the Internet Archive.
(Several of these witnesses or the organizations they represent have provided verbal or written testimony to the House Subcommittee on Courts, the Internet, and Intellectual Property. The testimony from that hearing, a copy of the proposed legislation and other orphan works information is in The Stock Asylum's special section on Orphan Works. To access the Orphan Works Section, click here.)
"The de facto result of the proposal would deprive visual artists of any real protection of their copyrights," Perlman says in his written testimony. "Worse, it would lead to creation of online companies that search the web for unattributed photos, archive them and provide access to them for a fee, without fear of liability. Those companies will profit while photographers and illustrators receive nothing."
"ASMP believes that the orphan works problem is a legitimate one that needs to be addressed," Perlman says. "However, for professional photographers and illustrators, the Copyright Office's proposal would have the effect of both retroactively and prospectively invalidating copyright protection for the majority of published images."
Perlman's statement says he will testify on behalf of the ASMP and "virtually every major association in the United States that represents the interests of freelance photographers, as well as several organizations representing freelance commercial artists and illustrators."
The ASMP web site is at: http://www.asmp.org
To download Perlman's testimony, click here
For the Senate Intellectual Property Subcommittee, click here
