Good timing: New draft orphan works legislation released

UPDATE 4/25/08: The legislation was officially introduced yesterday, so I’m re-publishing this post. Apparently, the House bill to which it refers has been modified substantially, so some of it is probably out of date. More soon.

Draft copies of a new Orphan Works Act were released by both the House and Senate today. It hasn’t officially been introduced yet, but there are links to PDFs of both versions at the bottom of this post. At this point, I haven’t read had a chance to read either closely, but here are some first impressions, based on a quick skim of the House bill, and an even quicker glance at the Senate bill. All quotations are from the House version. More will follow, after I have time to read both versions more carefully (and read what the experts have to say).

There are some substantial changes from the Orphan Works Act of 2006, at least one of which should please copyright holders concerned that orphan works legislation will erode their ability to control uses of their work, and another that will greatly diminish the usefulness of the act in the near term.

The first is a new requirement that users of an orphan work must register a “notice of use” with the Copyright Office. According to the bill (page 9 of the attached PDF):

Such filings shall include—

‘‘(A) the type of work being used, as listed
in section 102(a) of this title;
‘‘(B) a description of the work;
‘‘(C) a summary of the search conducted
under paragraph (1)(A)(i)(I);
‘‘(D) the owner, author, recognized title,
and other available identifying element of the
work, to the extent the infringer knows such in
formation with a reasonable degree of certainty;
‘‘(E) a certification that the infringer per
formed a qualifying search in good faith under
this subsection to locate the owner of the in
fringed copyright; and
‘‘(F) the name of the infringer and how
the work will be used.”

This will make is much easier for concerned copyright holders to keep an eye on things, because anyone who hopes to make a legitimate, protected use of an orphan work will register that use with the Copyright Office. Furthermore, there is a requirement that users of Orphan Works “include with the use of the infringing work a symbol or other notice of the use of the infringing work, in a manner prescribed by the Register of Copyrights;” (page 5) which means that re-uses of orphan works will be marked and easy to identify.

(As an aside, I was just talking this afternoon with Jack Bernard, my copyright professor from grad school, about a comment on orphan works that he and his colleague Susan Kornfield submitted to the Copyright Office in 2005. Their solution was unique in a couple of ways; one was that they proposed calling resurrected orphan works “fostered works,” and the other was that they suggested the creation of a registry of fostered works that would make it easy for copyright holders to see if their works were being called orphans. Jack said that nobody, in all the discussion of orphan works he had seen, had ever considered their comment, or talked about it, or mentioned it. Not once. I joked that I would blog about it. And now, not five hours later, the newly released draft legislation includes a requirement that looks an awful lot like one of the solutions Jack and Susan suggested back in ’05. Neat.)

The second is a requirement that the Register of Copyrights will develop a certification process for electronic databases that will “facilitate the search for pictorial, graphic, and sculptural works that are subject to copyright protection under title 17, United States Code” (page 15). This by itself is great news – we need resources that make it easier to find information about copyrighted works, and the Copyright Office should be leading the way in promoting the development of those resources.

Here’s the downside: While for most works the act will take effect in January of 2009, for pictorial, graphic, and sculptural works, the act will take effect either after the Copyright Office has certified no fewer than two “independent searchable, comprehensive, electronic databases, that allow for searches of copyrighted works that are pictorial, graphic, and sculptural works, and are available to the public through the Internet,” (page 17) or on January 1st, 2013, whichever comes first. January 1st 2013 is not soon. And pictorial and graphic works are some of the most notoriously difficult orphans to track down, as well as some of the most fragile.

Other observations… The new draft has language that explicitly exempts non-profit educational institutions, libraries, and archives from having to pay monetary damages, as long as their use is noncommercial and “primarily educational, religious, or charitable in nature.” There was similar language in the old bill, but it didn’t single out any particular kind of institution; I’m not sure if the new phrasing is better or worse or just different.

And a last note to the angry artists: the following language was in the old version of the bill as well, and it still nullifies all your claims that orphan works legislation will permit people to steal all your unsigned photographs and images:

LACK OF IDENTIFYING INFORMATION.—The fact that a particular copy or phonorecord lacks identifying information pertaining to the owner of the infringed copyright is not sufficient to meet the conditions [for eligibility] under paragraph (1)(A)(i)(I).

In other words, the mere lack of a copyright notice or name attached to the work is not enough for someone to declare a work orphaned.

Here are links to the PDFs of the drafts. My understanding is that Senator Leahy and Senator Hatch plan to introduce the legislation later this week.

House Orphan Works Act of 2008

Senate Orphan Works Act of 2008

[Cross posted at the Copyright Advisory Network blog]

4 thoughts on “Good timing: New draft orphan works legislation released

  1. Dear Ms. Kleinman,
    The drafts of this bill were released yesterday to the people and organizations who have been working closely on the bill. The emails were sent by House and Senate staffers with a confidentiality statement. The bills will likely be officially released April 24, 2008. Before that, they are not “official” and should not have been disseminated by you or anyone else.
    Shame on you.
    By the way, the Statement Of Use prior to use has been a requirement that the Graphic Artists Guild and the American Society of Medial Photographers have been pressing for. It is not related to the 2005 Comment Letter by Mr. Bernard and Ms. Kornfield.

    Lisa Shaftel
    National Advocacy Chairperson
    Graphic Artists Guild

  2. You claim the the “LACK OF IDENTIFYING INFORMATION” language is enough to protect Artist rights is completely nullified for practical enforcement purposes by other provisions of the bill that provide extremely easy defenses for those that wish to break infringement laws. Without a really big stick in court cases, artists and defenseless in being able to practically (re: economically) defend their rights. This legislation removes the really big stick. Also, almost all my clients are non-profits. By eliminating penalties for them, the law would eliminate all leverage for me to have them comply with copyright law and fair compensation for the art they used and the lawyer fees I incur to track them down and take them to court. The simple defense offered in the law for all reasonably smart infringers nullifies my ability to bring them to justice.

  3. Britt, I understand that you are very upset about the orphan works bills, but it is clear to me from your comments that you still haven’t actually read them. You are simply regurgitating Brad Holland’s propaganda. If you continue to leave comments without reading the legislation, I will start marking them as spam. You have had your say here.

  4. The bill explicitly states, in §514(e):

    “(e) Copyright for Derivative Works and Compilations- Notwithstanding section 103(a), an infringer who qualifies for the limitation on remedies afforded by this section shall not be denied copyright protection in a compilation or derivative work on the basis that such compilation or derivative work employs preexisting material that has been used unlawfully under this section.”

    That means that an orphan work can be absorbed into an image bank to be resold or licensed through derivative works, and the image bank can claim copyright protection on it, even if other works it claims that way have been acquired fraudulently. Given that Google and Corbis are lead proponents and architects of the bill, and are positioning themselves to be among the first databases, the very ones who will first discover that a work is “orphaned”, they stand to profit if your work is orphaned.

    I am one of those “angry artists”, but not because I read either side’s propaganda. I am angry because I have read the law and understand it. My advice to artists is to skip all the debate and simply read the law, including all the referenced and related law. See if it doesn’t make you angry.

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