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Update on 2008 Orphan Works legislation

See also
• Frequently asked questions about the Orphan Works legislation
• A series of audio podcasts on several aspects of the 2008 bills

Status: July 14, 2008

The House version of the orphan works bill is expected to go to mark-up very soon, perhaps this week or next. We have received a summary of the anticipated changes and, while we are not at liberty to disclose the specific proposals that are on the table, it appears that the net effect of them is to benefit photographers. They include some of the improvements that ASMP has been requesting and discussing with House staff.

Until we see the final language that comes out of the mark-up, we are asking you to refrain from contacting your representatives in the House.

However, we still want you to continue to contact your Senators (see the Call to Action, below) to ask that they amend the Senate bill until it contains adequate protections for photographers. Our Draft Letter to Senators has details of the message that you should send to your Senators and information for sending it.

Call to Action: May 17, 2008

At this time, the Senate version of the Orphan Works legislation does not provide even the minimum protections that ASMP considers necessary for photographers. It is now time for photographers to make their voices heard in the Senate.

We urge you to write to your Senators as soon as possible. You can find the name and contact information for your two Senators here. (After you have selected your state, your Senators will be the first two names in the list.) You can find a letter that you can copy and paste, print on your letterhead and fax to your Senators, here. Please feel free to change the wording as you wish.

It will take you only a few minutes to create and send these letters, but they will be some of the best used minutes of your career.

Thank you for your support in this important matter.

Status: May 15, 2008

The Senate Judiciary Committee held a mark-up session today and passed a slightly revised version of its orphan works bill, S. 2913. You can see the text of the revised version here, along with a brief summary of the changes between the earlier version and this one, prepared by Judiciary Committee staff, here.

Sadly, just about every single change benefits users to the detriment of photographers and artists. We are examining and discussing the options and will come back to the membership with a report and recommendations as soon as possible.

Status: May 10, 2008

There was further activity in Congress this past week on Orphan Works. The House Subcommittee on Courts, the Internet and Intellectual Property held a mark-up session on the House bill. Chairman Berman introduced an amendment to the bill that made a handful of changes. We do not consider any of the changes significant enough to change our opinion of the bill.

In addition, two other Representatives introduced, and then withdrew, several other amendments. This was done to indicate their positions in the areas covered by the amendments in order to keep those topics under further discussion. The main areas that remain controversial, and that we continue to support, are the elements that are helpful to photographers, such as the statement of use and the limitations on the extent to which non-profits are granted a safe harbor from having to pay compensation.

The markups to H.R. 5889 can be viewed here.

Chairman Berman said that the House Judiciary Committee will hold a closed meeting with interested parties before the full Committee mark-up. We do not yet know who will be invited to that meeting. We have learned that, after the end of the session, he said that he expected the full Committee mark-up on the bill to be in "much less than two months, but not necessarily next week".

Meanwhile, in the Senate, the Senate Judiciary Committee held a business meeting. Its version of this bill was on the agenda, but the Committee held over consideration of the bill until its meeting next week. At the same time, Senators Leahy and Hatch introduced a new version ("an amendment in the nature of a substitute") of the Senate Orphan Works Bill. Among the changes is the insertion a new, and most welcome, provision that says that orphan works does not apply to uses of copyrighted works on useful articles, similar to the provision in the House bill. Our industry owes Senator Arlen Specter a good deal of thanks for that!

Some of the other changes are far less photographer-friendly. There has not yet been enough time to analyze the new version completely, but it remains clear that the bill is not yet in a form that ASMP can support.

Some other groups have been asking photographers and artists to send in letters to Congress. We ask that you please refrain from doing that for the time being. We will almost certainly be asking you to send in specific letters to specific lawmakers, but we ask that you hold off until we send you a specific request, which will probably be in the next week or two.

Status: April 24, 2008

After months of discussions among Congressional staff and the parties with an interest in this legislation, bills were formally filed today in both the House (H.R. 5889) and the Senate (S. 2913). ASMP believes that, on balance, the House version is a bill that photographers can support. We believe that the Senate version could still benefit from some changes.

The Copyright Office’s original 2005 proposal was one page long. The current House bill is 20 pages. Most of that additional language is in there to benefit photographers and artists. Some of the improvements were worked out in the 2006 legislative sessions; others were developed through painstaking discussions over the past few months.

Let’s look at some of the important provisions of the House bill:

• Before using an orphan work, the infringer has to file a notice of use at the Copyright Office. The notice must include a description of the work, a summary of the search conducted, all identifying information found during the search, a certification that a good faith diligent search was made, the name of the user, and a description of the intended uses. Failure to file the notice means that the user cannot raise an orphan works defense if the copyright owner claims infringement. The Copyright Office must maintain an archive of notices of use.

• As in the 2006 bill, all that a copyright owner can get by stepping forward is “reasonable compensation.” But now there are some teeth to this clause: If someone fails to negotiate reasonable compensation in good faith, or fails to make reasonably timely payment of the agreed-upon compensation, the ability to claim orphan works status is lost.

• Useful articles (such as coffee mugs, key chains, t-shirts, etc.) are not uses that can qualify for orphan works status.

• The Copyright Office must certify private databases that facilitate the search for pictorial, graphic and sculptural works. The databases must contain name and contact info for author, name of the copyright owner if different, title of work, a copy of the work (for visual images) or a description “sufficient to identify the work,” mechanisms that allow search and identification by both text and image, and security measures to protect against unauthorized access or copying. The Copyright Office has to make a list of certified databases available to the public over the Internet.

• For photos and other visual works, the effective date of this law is delayed until

  1. the Copyright Office has certified at least 2 databases that are available to the public, or
  2. Jan. 1, 2013 (whichever comes first).

  In contrast, for non-visual works the effective date is quite soon: Jan. 1, 2009.

• As in the 2006 version — but important enough to bear repeating — the Copyright Office is directed to study alternative methods of dealing with small copyright claims. It must report to Congress within 2 years of date of enactment.

• The Comptroller General is directed to study the functions of the deposit requirement in copyright registration, including historical purposes of the deposit requirement, the degree to which deposits are available to the public, the feasibility of making deposits (especially visual arts) electronically searchable by the public for purposes of locating copyright owners, and the effects that any change in the deposit requirement would have on the Library of Congress’ collection. The report is due within 2 years after enactment.

As with any legislation, one could always wish for more favorable terms. Realistically, though, the House bill is about as good as photographers are ever going to get. If the bill is not passed this year, it will return in the next session of Congress, when at least one of the crucial subcommittees will be under different leadership. Based on the track records of the legislators who are in line for leadership, it is almost certain that they will write legislation that is far less friendly to copyright owners than the current leadership.

Point by Point: The Original Proposal versus H.R. 5889

Outline Of Changes Benefiting Copyright Owners Reflected In H.R. 5889	Outline of Original Orphan Works Proposal by Copyright Office
There is substantial expansion and detail in defining things like reasonably diligent search and reasonable compensation. The infringer is required to document the steps and results constituting the reasonably diligent search before the use is made. The Copyright Office is required to certify databases of visual works to facilitate searches for copyright owners and to maintain a list of certified databases.	User makes a reasonably diligent search.
The infringer is required to file a notice of use before the use is made, and the Copyright Office is required to maintain an archive of those notices. If the infringer fails to file the notice of use, he loses the orphan works limitations on remedies. The infringer is required to plead an orphan works defense in the first filing after an infringement suit is started. The infringer is required to disclose all of the documentation of the reasonably diligent search in the first discovery disclosure.	If unsuccessful in locating copyright owner, and if user provides reasonable attribution to the extent information is available, the use is eligible for an orphan works reduction in the copyright owner's remedies in an infringement action.
If the infringer fails to negotiate reasonable compensation in good faith, he loses the orphan works limitations on remedies. If the infringer comes to an agreement with the copyright owner as to reasonable compensation but fails to make payment within a reasonable amount of time, he loses the orphan works limitations on remedies.	Monetary compensation is limited to reasonable compensation (instead of actual damages, profits, statutory damages, attorneys' fees).
The "safe harbor" is only available to nonprofit educational institutions, libraries, archives and public broadcasters where: The use is made without purpose of commercial advantage, and The use is made primarily for educational, religious or charitable purposes, and The infringer promptly ceases the use after the copyright owner comes forward. In any event, the copyright owner is entitled to any proceeds that the infringer received that are directly attributable to the infringement. States' abilities to avoid payment under the doctrine of sovereign immunity is limited.	There is a "safe harbor" for all users if (1) the use is without purpose of commercial advantage (i.e. the infringer is not trying to take over any part of the copyright owner's market), and (2) the use is stopped promptly after the copyright owner comes forward, there is no compensation.
Orphan works status does not apply to copyrighted works used in useful articles (e.g. t-shirts, coffee mugs, etc.). The court can take the fact that the work has been registered at the Copyright Office into consideration in determining reasonable compensation.	No injunction is available to stop a use where the infringer has a used the orphan work to create a derivative work that recasts, transforms or adapts the work with a significant amount of the infringer's original expression; however, the infringer must pay reasonable compensation and provide attribution for usage after the copyright owner comes forward.
The effective date of the legislation for visual works is the earlier of either January 1, 2013 or the date on which the Copyright Office has certified at least two image databases. For works other than visual artworks, the effective date is January 1, 2009. The Copyright Office is required to study the effects of the orphan works legislation and report to Congress with recommended changes by December 12, 2014. The Copyright Office is required to study the need for alternative methods of resolving copyright claims involving smaller amounts of money and to report back to Congress with recommendations within two years of the date of the legislation's enactment. The Comptroller General's Office is required to conduct a study of the deposit requirement for copyright registrations and to report back to Congress with recommendations within two years of the date of the legislation's enactment.

Status: March 13, 2008

It is now official: An Orphan Works law is being drafted for consideration in the 2008 legislative session. On Thursday, March 13, the House Subcommittee on Courts, the Internet and Intellectual Property will hold a hearing, and ASMP’s General Counsel, Victor Perlman, will be there to testify on behalf of creators. He will be speaking on behalf of photographers and illustrators generally, as well as ASMP and its members in particular.

Our analysis

It has become clear is that some Orphan Works law is likely to be passed sooner or later. Key members of the House and Senate want it; significant user groups such as museums, academic institutions and publishers want it; and the general public wants it. ASMP understands the need for, and welcomes, a solution to the Orphan Works problem. Our objective has never been to defeat Orphan Works legislation as such. Rather, our goal is and has always been to make sure that any Orphan Works bill is fair to visual artists. In addition, it appears that the political environment this year is substantially more favorable to creators than it is likely to be over the next few years. These factors make it important for ASMP to help craft an Orphan Works bill that treats photographers and other visual artists fairly, and to support the passage of a fair and workable bill in this Congress.

Our proposal

We made substantial progress towards the goal of a fair and reasonable Orphan Works bill in the last Congress. However, there remained a few difficult but important areas of controversy when the bill was pulled. It appears likely that the starting point in this Congress will be something substantially similar to the last bill with, we are told, some improvements to help deal with the unique problems facing photographers and artists. In order to avoid unnecessary controversy, ASMP is proposing only a fairly small wording change from the last version of the bill that was introduced in the last Congress. We believe that this change will remove the threat to visual creators posed by profiteers seeking to use our works for commercial purposes while leaving intact the advancement of education and the country’s visual heritage, which are the primary goals of orphan works legislation.

In terms of drafting, we are proposing to limit the scope of the Orphan Works defense to:

1. Uses by individuals for non-revenue producing personal or community purposes, including uses on websites that do not generate revenues for the individuals using the Orphan Works;

2. Uses in works of non-fiction, such as books, articles or documentary films or videos;

3. Uses by non-profit educational institutions, libraries, museums or archives qualified for treatment under ¤501(c)(3) of the Internal Revenue Code as amended

   • in exhibits, including website displays, and
   • for uses that produce revenues and that are ancillary to exhibits.

In a nutshell, we see little financial harm to creators from the non-profit and non-fiction uses of orphaned images. At the same time, we want to make sure that commercial> users of images and illustrations would not be able to use an Orphan Works defense as a free pass to profit from infringements.

Alternative dispute resolution

ASMP’s testimony on March 13 will also reiterate our concern that the cost of a copyright lawsuit is often much greater than the likely award, which means that photographers are effectively denied access to the courts when copyright infringement takes place. We will continue to urge Congress to provide a lower-cost method of resolving copyright disputes.

PDF document: Victor Perlman's prepared statement of March 13, 2008, to the Subcommittee.

Status: February 27, 2008

Based on what ASMP was told last week in DC, there are plans to get language of a bill finalized and a bill (or two bills, one in the House and one in the Senate, probably with identical language) introduced this spring, with the hope of having it marked up by summer. Interested groups, such as ASMP, have not yet seen a working draft; we are told that it is going to be similar to the last version, but modified somewhat to be more acceptable to us and the artists/illustrators.

ASMP is working on language to submit to congressional staff and the copyright office right now in an attempt at further improvement. One of the reasons for the time pressure is political; many people want to get this done before there is a change in the chair of the House Intellectual Property Subcommittee. Rick Boucher (D, Virginia), who is in line to be the next chair, is seen as generally less friendly to copyright owners than the current chair, Howard Berman (D, California).