View Full Version : Orphan Works Act of 2008 (Long but Important)

07-03-2008, 08:00 PM
I was surprised (and frankly a bit dismayed) to see that there isn't already more of a discussion of this subject underway around here. There are currently bills in the House and the Senate that aim to amend the US Copyright law to allow use of works where the copyright holder can't be identified (so called "orphan works"). While that's an admirable goal, in principle, the way they've chosen to address the problem presents a whole slew of new problems.

Basically, what these bills do is remove almost all legal consequences for copyright infringement, as long as the infringer can prove that he or she "(i) performed and documented a qualifying search, in good faith for the owner of the infringed copyright; and (ii) was unable to locate the owner of the infringed copyright."

The bill's Requirements for Searches are somewhat dubious, referring as they do to Register of Copyright Best Practices that don't exist, a database of Pictorial, Graphic and Sculptural Works that also doesn't exist, and sets an outside date of January 1, 2013 for the law to go into effect, whether all the bugs have been ironed out or not. But here are the two biggest issues, as far as I can see:

1) Entry into the database requires registration with the Copyright Office, which currently costs $45. In the past year, I have taken almost 4000 photographs. Even if my hazy recollection that I can register up to 10 images on a single form is true, that means that I would have to spend $18,000 to protect my work. Either that or never, EVER let it see the light of day. Even assuming that a competing service will fill the same need for as little as $1 an image, you can see that it quickly becomes cost prohibitive.

2) The bills remove all penalties for copyright infringement except for the requirement to pay "reasonable compensation to the...owner." Now, anyone who has ever gotten into a copyright dispute can tell you that the notion of "reasonable compensation" is a really slippery concept. There's just no good way to prove the value of a work of art by someone who isn't already hugely famous or successful. Never mind the fact that there are all kinds of trade group pricing guides and such – they just don't hold up in court. The only real deterrent, such as it is, is the threat of statutory damages and having to pay legal fees. Once those are removed, copyright law becomes nothing but a toothless old lion – noisy, but harmless.

There are various trade groups on all sides of the issue. The American Society of Media Photographers, who fought like hell against similar legislation in 2006, seems to have given up. Their web page on the subject (http://www.asmp.org/news/spec2008/FAQ_for_OW.php) basically says "this is the best we're going to get, so we might as well take it." On the other hand, the National Press Photographers Association has said that can't support the legislation (http://www.nppa.org/news_and_events/news/2008/05/orphan02.html) and the National Writers Union has agreed (http://www.nwu.org/nwu/index.php?cmd=showPage&page_id=1.10).

You can get the full text, history and current status of the House version (H.R. 5889) here (http://www.govtrack.us/congress/bill.xpd?bill=h110-5889). The Senate version (S. 2913, or the Shawn Bentley* Orphan Works Act of 2008) is here (http://www.govtrack.us/congress/bill.xpd?bill=s110-2913). And for those who want to see what the current copyright laws look like, you can find the entirety of U.S. Title 17 here (http://www.copyright.gov/title17/).

*Shawn Bentley was a former Senate Majority Chief Counsel for Intellectual Property who left in 2003 for a job as Vice President of Intellectual Property and Global Public Policy for Time-Warner.

Soccer Mom
07-03-2008, 09:27 PM
Wow. This one has totally slipped under my radar. I'm going to read those bills before I form my opinion, but at first glance, it seems like those bills need to be more explicit.

07-03-2008, 09:33 PM
I think there's a thread over in P&CE, but I don't have time to go track it down.

07-03-2008, 10:43 PM
There is a thread in PC&E, but I thought it too important to leave over there. After all, it affects everyone.

Edited to Add: It should also be noted that the House bill differs pretty substantially from the Senate bill and that most of the provisions above come from the House bill. I believe there's a comparison of the two bills on the ASMP page linked above.

07-04-2008, 03:02 AM
Thanks much for this, pconsidine.

After cursory review, it appears that both House and Senate versions have a better than average chance of being made into law because they're unusually bi-partisan. Both versions are co-sponsored by equal number of Democrat/Republican members. Typically, we can count on the opposing party to try to block things. But this one is not only bi-partisan, the May 7 markup of HR 5889 was remarkably cordial and polite for these things. I watched it on video...all scintillating 45 minutes of it. (Is it a constitutional requirement that congresspeople have no capacity for voice modulation or inflection?)

I initially thought that this bill, like so many others, would be one of those good-intention things brought forth to "fix" a perceived inequity--without a real world grasp of the myriad unintended consequences one unleashes when tinkering with things they only know about second or third hand. I still think that's partly the case. But it's clear they're not blind to all the downside to copyright holders. I just think most have them have decided they can live with them so we should too.

With the exception of two congressmen who expressed polite concerns and reservations about certain aspects of the bill and amendments unfavorable to the copyright holder, this was largely an exercise in greasing the skids for non-profits and universities and the like who want to use other people's creative works and intellectual property. Only one congressman mentioned that intellectual property was indeed property; that the owner was entitled to compensation irrespective of the classification or motives of the infringer/user.

Anyone who wants to get an idea of how these committee markups work, what they said on May 7, or if you're out of Tylenol PM, here's the link: http://judiciary.house.gov/Markup.aspx?ID=200

My congressman is on this subcommittee--the Judiciary Subcommittee on Courts, the Internet, and Intellectual Property. But either he wasn't at the May 7 meeting or he didn't speak. I intend to bone up on the particulars of this bill and give him an earful.

I will find out the process for getting opinions and statements into the Judiciary committee record. Any AWers who live in DC and are interested in maybe testifying or making a statement should call the Judiciary Committee at 202-225-3951 to get a schedule of the next meetings, hearings, etc. at which HR 5889 will be discussed.

The bill has moved out of the subcommittee and has been passed to the Judiciary Committee as a whole for further markup. The final document could look very different than it does now, depending upon who applies the most pressure and makes the most noise. This is the time to weigh in, while it's in committee. Significant changes are infinitely harder to get effected once the bill makes it to the floor for a vote of the full House. Check here to see if your rep is on the Judiciary committee, and let him/her know what you think.

Remember, this is an election year! Your congresscritter will be much more amenable to suggestions made before November than after. Mail from their own constituents counts about 10 times more than someone's outside their district. Phone calls are often not passed on, or just get a thumbs up/thumbs down mark on the tally sheet.

pconsididine: Your post is very good as-is. Just tweak it for Judiciary Committee consumption rather than AW. Thanks again for the post.

Any volunteers to take a look at the Senate version of the bill?

07-04-2008, 03:20 AM
One of the things that I find really interesting is, if one is to believe the stated aim helping archivists and librarians make use of orphan works, that the bills aren't trying to expand the qualifications for fair use or amend the existing sections that cover nonprofit, educational use of copyrighted works. Rather, they've chosen to completely eviscerate the section regarding the legal remedies for copyright infringement in the case of orphan works. Frankly, it seems like an old media solution to what will ultimately be a new media problem.

I have to also say that it's somewhat disturbing to me that the Senate has already gotten their version into committee, since it's the version that's far less friendly to copyright holders. So if people only have time to make one phone call, it might be best to make it to your Senators.

07-04-2008, 06:30 AM
What I wonder is this: Who introduced the bill and why (and who were their civic/private supporters)?Someone's going to benefit, right? Was it librarians and archivists or a lobby group?

Any back story on that?

07-04-2008, 07:38 AM
What I wonder is this: Who introduced the bill and why (and who were their civic/private supporters)?Someone's going to benefit, right? Was it librarians and archivists or a lobby group?

Any back story on that?

From what I understand is it's from a Bill Gates company who makes money selling clip art, photos, sketches, and images at very low rates. They would stand to make a whole lot of money if they could lift thousands of "Orphaned" images every single month without ever having to pay royalties or fines.

P.S. I have written to both of my state senators and my state Representative for my district. I only hope they realize just how big this is and how many people this will hurt.

Sean D. Schaffer
07-04-2008, 04:46 PM
Yeah, this has been discussed for months at artists' sites. I read a link from one of them to the actual bill, and from what I've read, that bill gives anything that is not registered for copyright protection, the designation 'Orphaned Work.'

I am blown away that this is not being discussed at length here... unless it's been done at P&CE, which I do not have access to. The last time I heard, it was supposed to be voted on last month.

07-04-2008, 08:17 PM
That was why I wanted to bring it over to Roundtable, Sean. The thread in P&CE seemed to be getting lost in the shuffle.

And the idea of "forced registration of copyright" gives a lot of people trouble. For one, it violates the terms of the Berne Convention, which prohibits forced registration as a condition of copyright protection and which the United States signed in 1988.* Unfortunately, the United States seems to be historically reluctant to let international opinion have any effect on policy.

As far as where this all came from, it's actually been around for a while, but there are those who think that the biggest motivation now is coming from Google, who seem to have a plan to catalog everything in the world at some point. There are also the stock photo agencies that icerose touched on (the Bill Gates connection is that Microsoft owns Corbis, which is one of the biggest sources of historical images anywhere). But there are also the "open source" folks, who'd like to see copyrights done away with entirely. All that in addition to the librarians, archivists, historians, and documentarians that have always been in favor of some kind of orphan works legislation.

It might turn out that this is just the "perfect storm" of support that gets something passed.

*Interesting related link: http://en.wikipedia.org/wiki/List_of_parties_to_international_copyright_treatie s

07-06-2008, 12:53 AM
Interesting little tidbit I picked up on NPR today:

Senator Dennis Leahy of Vermont, one of the bill's sponsors in the Senate, apparently has a cameo in the upcoming Batman movie. He seems to be quite the Batman fan.

Funny stuff, that. :)

07-10-2008, 08:12 PM
Bumping this thread to keep it alive.

07-14-2008, 09:58 PM

Word is this bill will be discussed this week by the House Judiciary Committee and then directed to the full house for a vote. The Illustrators Partnership, one of the strongest voices against the bills, have suggested a list of amendments to the current bill which can be found here. (http://ipaorphanworks.blogspot.com/2008/07/hr-5889-amendments.html)

They've also provided an easy way to contact your representative here. (http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11618481) Please take a moment to drop your Congressman (or woman) a note and let them know where you stand on the issue.

07-15-2008, 01:16 AM
I was surprised (and frankly a bit dismayed) to see that there isn't already a discussion of this subject underway around here.
People did discuss this, and know about it, a couple of months ago - when I posted the original thread (which, yanno, a link to or mention of in your original post would have been nice, instead of acting like you're the first one to acknowledge the act on this forum, (then only acknowledging it after someone else mentioned it) - and since some people had already placed their opinions in it).

It wasn't only on here that it was discussed back then - it was also around on other artist sites (I personally found it on another community), so chances are most people already know about it/have an opinion on it.

07-15-2008, 02:21 AM
I'm sorry for the mistaken impression. I've edited to clarify my intention. It should be said, though, that neither this thread nor the original one (which has since been locked) has really risen to the level of actual discussion, which makes me wonder if people really do have an opinion or if they've assumed that it's not an issue for writers.