Orphan Works Introduced . . .

Stock Asylum Staff Report
May 22, 2006 (Updated May 23)

Legislation that would make it easier to publish copyrighted works when the copyright owner cannot be found has been introduced in the U.S. House of Representatives.

Rep. Lamar S. Smith, chairman of the House Subcommittee on Courts, the Internet and Intellectual Property, is the lead sponsor of the bill, entitled the Orphan Works Act of 2006 (H.R. 5439).

After 20 hours of negotiations between interested parties and members of Smith's subcommittee, the bill is considerably better for visual artists than the original proposal sent to Congress by the U.S. Copyright Office in January. However, The American Society of Media Photographers (ASMP) has indicated it will still seek some changes as the legislation works its way through Congress.

If passed in its current form, the legislation would go into effect "on or after June 1, 2008," which should give groups like ASMP at least some time to develop registries of copyright owners to help image-users locate the owners.

The bill differs from the original proposal in that it better defines a "reasonably diligent search" for the copyright owner. The Copyright Office proposal would have required that a copyright infringer conduct a "reasonably diligent search" before using an orphan work. However, the Copyright Office did not want to define the term because it felt that such a search would be different under various circumstances.

To be a "reasonably diligent search" under the new bill, the potential user of an orphan work must do more than simply look for the name on a "copy or phonorecord of the work."

The user must review information maintained at the Copyright Office and use "reasonably available expert assistance and reasonably available technology, which may include, if reasonable under the circumstances, resources for which a charge or subscription fee is imposed."

In addition, the bill would require that "The Register of Copyrights shall receive, maintain and make available to the public, including through the internet, information from authoritative sources, such as industry guidelines, statements of best practices and other relevant documents that is designed to assist users in conducting and documenting a reasonably diligent search under this subsection."

Despite these and other improvements, many favorable to visual artists, ASMP Executive Director Eugene Mopsik told photographers that some provisions "still need to be changed." He said ASMP will be asking its members to contact representatives to ask for the additional improvements.

In an e-mail to ASMP members, Mopsik said his organization is still concerned about parts of the monetary relief clause that governs how much money a copyright owner can collect when the owner comes forward after the work is used.

The provision limits awards for monetary damages to "reasonable compensation," except where "the infringement is performed without any purpose of direct or indirect commercial advantage and primarily for a charitable, religious, scholarly or educational purpose" and the infringer ceases the infringement quickly when contacted by the copyright owner. In such cases, no compensation is required.

However, where an infringer benefits financially from the infringement but fails to negotiate compensation in good faith, courts may award costs and attorney's fees to the copyright owner. Such awards were not permitted under the original Copyright Office proposal.

If enacted, the legislation would also require that the Copyright Office report to Congress before Dec. 12, 2014 about implementation of the legislation and possibly recommend changes.

It also instructs the Copyright Office to conduct an inquiry about alternative methods of resolving copyright disputes where small amounts of monetary relief is involved. The bill would require that the Copyright Office report to Congress about the inquiry within one year after enactment of the Orphan Works Act.

Professional Photographers of America (PPA), a photographers' organization, has been lobbying Congress to develop a court of small copyright claims or an administrative procedure to settle minor copyright disputes. PPA and other groups have argued that visual artists can seldom afford the costs of fighting a copyright claim in Federal Court.

To become law during this session of Congress, the Orphan Works Act would have to be passed by the House and the Senate before the end of the session, which is scheduled to conclude in October. However, the session could be extended into November or early December.

Beth Frigola, press secretary for Rep. Smith, said a separate bill could be introduced in the Senate, or the Senate could take up the House bill. If the Senate and House pass separate bills, the legislation would go to a conference committee to iron out differences. The final legislation would have to be signed by President George Bush to become law.

Orphan works legislation was first proposed in January by the U.S. Copyright office to help publishers and others who want to use images and other works when the copyright owner is unknown or cannot be found.

ASMP, PPA, Illustrators' Partnership and a number of other organization opposed the Copyright Office proposal, which they felt went too far. The organizations are concerned because photos, including stock photography, and other visual materials are frequently reproduced without attribution, making it difficult to track down copyright owners.

Many museums, libraries and universities favor the proposal. The institutions often feel constrained by the current copyright law when they want to publish images, documents, letters and other materials of historic, artistic or scholarly value. In many cases, finding the authors of such works is impossible.

Smith's subcommittee held hearings on orphan works in March. Afterwards, a number of closed-door meetings were held with congressional staff and organizations on both sides of the orphan works issue.

In another matter involving copyrights, Mopsik said an idea that would make it easier to register image copyrights has so far received a warm reception.

It's a real simple idea," said Mopsik. "Within 18 months the copyright office says they will have created a system for online registration of photographs. What occurred to us was that if we want to promote copyright registration, the best way to do that is to make it possible for photographers to prepare and send images for registration from within their digital asset management (DAM) programs.

Under the proposal, first put forward by Jim Flynn, a member of the ASMP board of directors, photographers and others would register images directly, using programs like Extensis Portfolio and Adobe Bridge.

"It seems to be an idea that people on all sides of the equation can get behind," said Mopsik. "The Copyright Office wants to promote registration, we are interested in having our photographers register their work and the software developers see this as a value-added feature for their product."

 

The ASMP web site is at: http://www.asmp.org.

To read the draft legislation, previous articles or other information about orphan works, click here.