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The House and Senate both introduced new legislation to allow for greater use of so-called “orphan works” — books, music, photos, movies or other works whose owners can’t be found. Why are these bills important? Because there are literally millions of works in existence that are currently under copyright protection but for which the copyright owner cannot be easily found. Because if you use a copyrighted work without permission, you could be on the hook for statutory damages of up to $150,000 per work, orphans go unused.
Think of a diary kept by someone during the second world war and recovered from an attic. Think of a box of old photographs happened upon at a yard sale. Think of an illustration used in an advertisement but not clearly attributed. At the moment, these works are unavailable to publishers, filmmakers, collage artists and many other creative professionals who would like to use them and gladly pay for the privilege, but can’t because of the potential for massive penalties if the original copyright owner does emerge.
The newly introduced bills allow artists to use orphan works as long as that user makes a diligent effort to find the original copyright owner. In the unlikely event that the original owner does emerge, the compensation that a user pays should be reasonable. The two bills currently on the table — S. 2913, the Shawn Bentley Orphan Works Act of 2008 (PDF link) and H.R. 5889: The Orphan Works Act of 2008 (PDF link) — go a long way to address these issues and if passed, would grant the public access to millions of previously inaccessible works of art.
These Bills are being considered in there respective committees this week. We need you to write letters and call your Members of Congress to ask for them to support the bills and make a few tweaks.
Specifically, there are key differences between the House and Senate bill that deserve to be scrutinized. While the Senate bill can be seen as a “base bill” of sorts, the House bill tacks on a number of provisions for copyright owners. These provisions include:
A “Notice of Use Archive” (NUA), a repository to which users will have to formally submit their diligent effort searches. In the House bill, the Copyright Office is given a great deal of discretion as to how this archive will be structured. What fee will users have to pay in order to formally file with the NUA? Will the archive be open for anyone to view? If so, what will prevent copyright “trolls” and identity thieves from menacing users who file with the NUA?
A “useful articles” exemption that would make any work with commercial or use value—for example, mousepads, T-shirts and mugs printed with an image—exempt from orphan works legislation. This exemption could discourage the creation of derivative works that blur the lines between art piece and commodity.
A provision that grants courts the discretion to take into account the value of a copyright registration when considering reasonable compensation. This provision is designed to “reward” copyright owners for having filed for a copyright registration in the first place. However, this would also reward owners who failed to maintain their copyright registration, which would have allowed their copyright to be easily found in the first place.
While the Senate bill contains few, if any, questionable provisions like those above, it does fail to specify that the visual copyright registries that will be established under the bill be free for public searches and machine readable. These registries could be setup by industry groups (i.e. professional photographers associations) or by adapting existing services already available on the Internet, but they may not be subject to public access unless specified in the bill.
Finally, the House and Senate bills have different effective dates for photographs, illustrations, graphic and textile designs. For the House, the effective date for these works could be delayed till as late as 2013 and for the Senate it could be delayed till 2011. We’d rather that the dates on the two bills match and as far as we’re concerned, the sooner orphan works legislation goes into effect, the sooner artists can start taking advantage of existing works.
Despite our objections to certain provisions in the bills, we at Public Knowledge are extremely excited about both bills and we think that you should be too — together they represent the first pro-user change to U.S. copyright law in almost two decades. Using the forms linked below, write to your member of Congress and let them know why the orphan works bills are important to you and what, if any, changes you’d like to see made before they’re ratified.
