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 Apparently, the House bill to which it refers has been modified substantially, so some of it is probably out of date.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]

Somehow, my last post on orphan works has become the fourth hit on Google when you search for “Orphan Works Act”, as of 12:30 pm EST on April 16th. This is contrary to everything I know about search engine optimization, but that’s for another day.

The point is that, as a result of the post’s high Google ranking, I’ve had a number of comments from the previously-mentioned angry illustrators, upset about what they believe orphan works legislation will do to their livelihoods, and I feel compelled to respond.

There is a lot of misinformation about the potential Orphan Works Act being spread by the Illustrators’ Partnership, most of which is embodied in Mark Simon’s recent article, “Mind Your Business: You Will Lose All The Rights to Your Own Art” (the lies begin in the title). Illustrators all over are swallowing these falsehoods whole, and have taken it as their personal mission to make sure no Orphan Works Act ever passes. A few people out in the blogosphere have done a nice job of addressing the many specific inaccuracies floating around – Meredith Patterson and kynn both go into great and entertaining detail – and I won’t address them here.

Here, I’m concerned with the assertion, made by Mia in a comment on my last post, that orphan works legislation “is a ludicrous scheme dreamed up by greedy corporations”. It’s not. It’s just not. For the last few years, major champions of orphan works reform have included Lawrence Lessig, Duke’s Center for the Study of the Public Domain, Eric Eldred, and The American Library Association. And don’t forget Register of Copyrights Marybeth Peters. These are individuals and organizations dedicated to serving the public good, to preserving the founding principles of copyright law, and to promoting the Progress of Science and useful Arts. They’re policy wonks and librarians.

Why do wonks and librarians care about orphan works? Because we see every day the terrible impact that ever-extending copyright terms are having on the ability of ordinary people to find, share, and build upon the creative works of the past. Because we are watching unique materials in our collections – fragile books, classic film reels, historic photographs – crumble, with no clear legal protections for those of us would like not just to preserve those materials, but resurrect them and introduce them to a new generation of users and researchers.

I can brush off a lot of the lies about potential orphan works legislation as just poor fact-checking, but when someone lumps me in with “greedy corporations” – the very corporations that got us into this copyright mess – I take it personally. The public benefit that would come from a reasonable orphan works act is real, and it is great. Librarians see it. Policy wonks see it. Many scholars and creators see it, too. Orphan works legislation is not about authorizing giant corporations to steal from starving artists. It’s about opening up a vast store of resources that have been made inaccessible through a series of bad policy decisions and that, in the age of the Internet, have new potential to reach and affect millions of people who never could have found them before. Orphan works reform was dreamed up by wonks and librarians, because we care about the public, we care about progress, and we want to do good.

So it looks like we might get an orphan works bill after all. Finally.

I’ve been interested in the orphan works problem since my first year of grad school, when I gave a presentation about it in my copyright class. This was right around the last time it looked like we might get an Orphan Works bill, and I remember checking the Copyright Office website every week to make sure I hadn’t missed anything good. Three years later, still nothing. It has been a real lesson for me in the excruciatingly slow pace of lawmaking.

First there was the recognition that orphan works were a problem that was only going to get worse. That happened when? Shortly after the Sonny Bono Let’s Extend Copyright Terms Again Because Almost Infinity Isn’t Long Enough Act in 1998? Earlier? Then Eric Eldred filed his complaint in 1999, and the Eldred v. Ashcroft verdict was finally handed down in 2002. Three years passed before the Copyright Office’s Notice of Inquiry in 2005. Then the Orphan Works Act of 2006 went nowhere. Now it’s 2008, and the Subcommittee on Courts, the Internet, and Intellectual Property held a hearing.

Here’s hoping something comes of it. Photographers and illustrators have been objecting strongly to all orphan works legislation, and I think they have some legitimate concerns about the ease with which their works can be separated from their names, but that doesn’t mean a reasonable orphan works bill wouldn’t have a tremendous public benefit overall. It’s long overdue.

[Update: I've written a follow up to this post, here]