The Orphan Works Act that passed the U.S. Senate was amended at the 11th hour with a small concession for copyright holders.
The bill spells out, for the first time, what is considered a "diligent effort" to search for and contact a rights holder. Of all the proposals kicked around in Congress since 2006, this bill goes furthest in defining these searches.
Even if the current bill never makes it through the House and into law, it may provide a glimpse into the future of copyright – and how photographers can start acting now to make sure their images never fall into "orphan" status.
Bottom line: Be easy to find on the Internet.
The bill cleared the Senate on Sept. 26 and could go to the House next, though there are no solid indications of what will happen to it there. A version of the bill was introduced in the House earlier this year with more concessions for creators, but it has not come up for a vote.
The Senate bill, called the Shawn Bentley Orphan Works Act of 2008, is a copyright amendment designed to free up creative works for which no owner can be identified. It has strong support from libraries, schools and museums that want the freedom to reproduce archival work without fear of hefty copyright claims. It limits the penalties for infringement if an infringer can prove they made a diligent effort to contact the copyright holder.
Groups that represent photographers and other visual artists strongly oppose the legislation, saying it attacks artists' rights to control their work and profit from it.
Over the weekend, blogs and e-mail blasts aimed at professional photographers assailed the Senate for passing the bill through a procedure called hotlining – a maneuver intended to quickly move non-controversial legislation. No one blocked the hotlined bill, and it was recorded as having passed by unanimous consent. It was sponsored by Sen.
Patrick J. Leahy (D-Vt.) and cosponsored by Sens.
Orrin Hatch (R-Utah) and
Robert Bennett (R-Utah). It was amended Friday by Sen.
Jon Kyl (R-Ariz.), the Republican Whip in the Senate.
The amended Senate bill, for the first time, defines what would be considered a "diligent effort" to search for a copyright owner. The effort requires:
- An Internet search of any relevant public Copyright Office records.
- A search of "reasonably available sources of copyright authorship and ownership information."
- Use of appropriate technology tools, printed publications, and where reasonable, expert assistance.
- Use of databases, including those available through the Internet.
- Further action based on any relevant facts uncovered during the search.
Like other versions of the bill, the Senate bill calls on the Copyright Office to draft a set of recommended practices for conducting a search.
The Senate bill also encourages the creation of searchable registries of copyrighted works. Such databases do not exist yet, but several companies are developing them. (
Related PDN story.) The act requires the Copyright Office to certify these private databases. The Orphan Works amendment would take effect 30 days after two such databases are certified, or on Jan. 1, 2013, whichever comes first.
Several photo organizations are encouraging their members to contact their congressional representatives and tell them to oppose the bill if it comes up in the House.
Advertising Photographers of America sent out an e-mail blast just after midnight Saturday morning encouraging photographers to contact their congressperson. "Passing controversial legislation by this process, i.e. under the radar, is deeply troubling to say the least and every Senator needs to be held accountable," the message said. "But now our focus is the House."
The American Society of Media Photographers, which had previously supported the House bill because it provided more safeguards for copyright holders, also asked its members to contact members of the House and encourage them not to adopt the Senate version of the bill.
ASMP general counsel
Victor Perlman said the revised Senate bill is "mildly better, but still not adequate and not as acceptable as the House version," referring to the earlier draft introduced in the House. The House version of the bill would require infringers to file a notice with the Copyright Office when they intend to infringe on an orphan work. Perlman said ASMP was concerned the latest Senate bill would become a benchmark for future legislation. So far it is the only version of the bill to pass either house of Congress.
The Senate passage has attracted little notice outside of the creative community. Public scrutiny of Capitol Hill this week has mostly concerned the proposed $700 billion financial bailout package.
Related link
Text and status of Senate Bill 2913
Related stories
April 24: Orphan Works Bill Would Establish Database Of Photo Copyrights
May 8: Photo Advocates Divided Over Orphan Works
July 2, 2008: Lost and Found
