This past Friday, the Senate passed the Shawn Bentley Orphan Works Act of 2008. The bill’s provisions are mostly similar to the version as introduced. Alex’s analysis of the provisions of the bill as introduced can be found here. The major change in the bill as passed is in the “diligent search” provisions.
The bill improves upon previous “diligent search” language by clearly spelling out the user’s obligations, thereby addressing the argument that insufficient searches would permit the use of works that were not truly orphaned. Under the Senate’s language, users must:
- Search the relevant Copyright Office records;
- Search for the owner in reasonably available sources of copyright authorship and ownership information;
- Use technology tools, printed publications and expert assistance; and
- Search databases including those available through the Internet
While the bill calls the above minimums, the bill also requires that a qualifying search ordinarily be based on further guidelines. Previous drafts suggested that a court defer to the Copyright Office’s guidelines and left it up to the Copyright Office to develop its best practices with various levels of public input. Many feared that the Office did not have the necessary expertise to play this role. The Office would need to look to outside sources of authorship and ownership information, technology tools and sources of expert assistance. Examples of such sources of ownership information could be the ASCAP database for ownership of musical works or the Internet Movie Database of production and distribution companies. Examples of sources of expert assistance could be services such as Clear Inc. which assist filmmakers in searching for copyright owners. But the problem with this approach was that the Office was placed in the position of picking which sources to approve and also what search steps users had to take in order to search for owners. Thankfully, as far as the guidelines that make up a user’s qualifying search, the bill now places the Copyright Office’s “best practices” (which the bill now calls “recommended practices”) on the same footing as those developed by user, author, and owner groups that have expertise in searching for copyright owners.
The bill has other differences from the version as introduced. It calls upon the Copyright Office to take into account comments of the Small Business Administration Office of Advocacy in formulating its best practices and certifying visual registries. The purpose of the provision is ostensibly to allay fears of visual artist groups who have vehemently opposed the bill. The sovereign immunity language for universities has been worked out. The word “commercial” now modifies “distribution to the public” in the section that prohibits the use of orphans in or on a useful articles. And the visual registry provisions of the bill have fewer conditions to streamline their certification by the Copyright Office, presumably in an effort to hasten the effective date.
Although not perfect, the Shawn Bentley Orphan Works Act is a great step towards restoring some balance to copyright law. As Register of Copyrights Marybeth Peters notes, “a solution to the orphan works problem is overdue”. The legislation “has benefitted from many months of discussion, reflection and fine-tuning under the leadership of Senators Patrick Leahy and Orrin Hatch and Representatives Howard Berman and Lamar Smith.” We hope that following the Senate’s example the House will pass the orphan works bill by the end of this session of Congress.
Those at Public Knowledge
Those at Public Knowledge shouldn’t delude themselves about the true goals of this legislation.
Google and Microsoft were key proponents of this legislation, as were the image banks of Corbis and Getty, all of whom would have much to gain monetarily by the freeing of images. That is the only reason this issue gained the attention of Congress- three words: Big. Corporate. Money. Google themselves admitted how much damage could be done to them by copyright infringement suits (many of which could be negated through this legislation): “[a]dverse results in these lawsuits may include awards of substantial monetary damages, costly royalty or licensing agreements or orders preventing us from offering certain functionalities, and may also result in a change in our business practices, which could result in a loss of revenue for us or otherwise harm our business.”http://investor.google.com/documents/20070331_10-Q.html
Strange that a site such as this that wants to free information from the consolidation of a few media companies lauds the goals of this legislation that does exactly the opposite.
The current Orphan Works bill that passed the Senate is simply is of no use to me as an artist, or to anyone who makes a living selling usage rights of their original images. Copyright law as it stands now creates no additional burden on me to prove my ownership of images- if I create it, its automatically copyrighted. Adding a “visual registry” system to the process to aid in the search for “orphan works” is an enormous imbalance of priorities- supposing it does make it easier to use orphaned works, it only weakens and overcomplicates the process of dealing with and proving the ownership of my own works.
As David Rhodes, President of the School of Visual Arts has said, the Orphan Works bill would socialize the expense of copyright protection while privatizing the profit of creative endeavors. Copyright owners neither want nor need this legislation. It will do great harm to small businesses. We already have a banking crisis. Congress should not lay the groundwork for a copyright crisis.
Patrick, I’m sorry to
Patrick,
I’m sorry to tell you but I don’t believe your sources to be accurate. Google and Microsoft, unfortunately in my opinion, have not participated much, if at all on orphan works. I wish they would, because I think they have a lot of services and technology they could use to address many of the problems of finding artists. Your source has made a boogeyman of these corporate types, when they’re not even part of the debate.
Adding a visual registry was a concept we (PK) proposed long ago. We proposed it because of the specific concerns of artists like you, who said their biggest problem was not being able to be found because the Copyright Registry failed you.
Artists wouldn’t be required to use these registries at all, it’s up to the artist. I believe they could offer a number of useful features, like making your works available to the public for exposure, license, or just simple hosting.
I’m sorry to disagree with you and too many of your brethren on this issue. PK fights for your rights to create and distribute your content in so many contexts. It is unfortunate that you perceive our promotion of an orphan works solution as some desire to harm your way of life. I’ve said it so many times, we understand that you make your livelihood from your creativity. We want to make sure that’s possible in every way we can. However, there are some artists, like indy filmmakers, for whom the inability of finding an owner makes expression of their creativity impossible. We, the Copyright Office, and Congress are concerned about them, and that’s the focus of this legislation. At the same time, the bill has so many safeguards to protect against bad actors to stop them from gaming the system.
Actually, I’m very
Actually, I’m very interested to hear who you think the big players are that are proponents of this legislation. Which corporations and individuals are paying a lobbyists to get this passed into law?
Here are the groups that I
Here are the groups that I believe to be actively working this issue and are paying lobbyists: promoters: PK, libraries, archives, museums, universities, indy film makers, and publishers; opposers: photographers associations, illustrators, graphic artists, textile manufacturers, and sculptural artists. MPAA also has concerns and I think it’s fair to say that it has not been promoting the bill.
Of those groups, I guess the publishers are the largest corporate-like association, though not necessarily the kind of corporation you may have thought as promoting the bill. Don’t know if it makes a difference, but they are copyright owners as well as users—but they are promoting the bill.
The tech folks really haven’t been involved much at all because they seem to perceive little upside to them. I wish they would be more involved, but they’re really not—what evidence do you have that they are? What do you perceive is the upside to them?
I do not know whether they
I do not know whether they are involved in the lobbying. I’m far far away from the epicenter of these maneuvers.
However, at the Orphan Works Roundtables held in Washington DC by the US Copyright Office in July 2005, Alexander MacGilivray, representing Google, said that Google expected to make use of 1 million orphan works.
http://www.copyright.gov/orphan/transcript/0726LOC.PDF
If there is an upside for any organization to limit the liability of using orphan works, it would have to be a company with this kind of expectation!
That was in 2005, before the
That was in 2005, before the Smith bill even existed (it was intro’d in 2006). That bill never passed and it wouldn’t have enabled Google to do what it intended in 2005. The 2008 Senate and House bills are even more “burdensome” in what is required of a user, even further preventing any kind of mass exposure of orphan works.
Just have to wonder, whether the indy visual artists complaining about this bill have even taken the time to read it. If they had, it would be pretty plain to see Google or Microsoft’s lack of interest in this legislation.
you wrote - Patrick, I’m
you wrote - Patrick,
I’m sorry to tell you but I don’t believe your sources to be accurate. Google and Microsoft, unfortunately in my opinion, have not participated much, if at all on orphan works. I wish they would, because I think they have a lot of services and technology they could use to address many of the problems of finding artists. Your source has made a boogeyman of these corporate types, when they’re not even part of the debate.
http://www.marketwatch.com/news/story/web-firms-quietly-win-copyright/story.aspx?guid={E21206C0-98F5-459B-9506-8133CBD82859}
“Web firms quietly win copyright victory in Congress” 9/29/08 “SAN FRANCISCO (MarketWatch) — As the media turned its attention last weekend to battles on Capitol Hill over the fate of the proposed Wall Street bailout bill, Internet companies including Google Inc. and Microsoft Corp. quietly walked away with a legislative victory that could facilitate their use of copyrighted material.”
(happily that didn’t happen, but someone obviously thought that it was going to - which makes you wonder where they got their information - and notice that they come right out and say, ‘COPYRIGHTED MATERIAL’)
It’s also no secret that the author or the Orphan Works study for the copyright office (Jule Sigall) is now a Microsoft employee.http://research.yale.edu/isp/a2k/wiki/index.php?title=Jule_Sigall&printable=yes or TLJ Daily E-Mail Alert No. 1,510, December 27, 2006
google lobbyist in dc (from 2005 and mentions orphan works as a problem and magically, the legislation is introduced in 2006) They want freedom from copyright limitations -so it’s hardly just an effort to free up ‘ORPHANS’. They want to resell and sell ads using this content - Not that they want the public to have it for free. http://www.ebrandz.com/newsletter/2005/october/131octarticle27.htm
Apparently everyone is
Apparently everyone is making bogeymen of big internet companies over this legislation. With so many people and organizations saying they are promoters of the Orphan Works Act, and many implying they are the big money behind it, why should people believe your take on it? Here are the two articles that arrived in my mailbox today. Both of them reinforce Google and Microsoft as key players in this game, so apparently the bogeymen ARE REAL. ;)
http://www.editorandpublisher.com/eandp/departments/syndicates/articledisplay.jsp?vnucontent_id=1003870085
http://www.editorandpublisher.com/eandp/news/articledisplay.jsp?vnucontent_id=1003856861
Google and Microsoft also
Google and Microsoft also gave just shy of a 1/2 million each to Sen. Barack Obama (open secrets website)along with several universities that tossed out alot of money as well - that certainly made my Nov. decision alot easier.
Eraethil, I couldn’t open
Eraethil, I couldn’t open those two links for some reason, but I searched for all the recent articles on editorandpublisher.com on the topic. From what I read, it was the head of the AAEC that brought up Google and Microsoft. I don’t know that reporter who wrote that story did any fact checking with regard to this claim, maybe a call to Google or Microsoft could have been made to ask them how much they had been working on this issue?
I guess my argument here is that you can’t believe everything you read, but that goes for the same on this blog. I could say/write anything but that doesn’t make it true (many of you commenting here don’t seem to believe me anyways). But with me, how am I supposed to prove the dispositive—that “someone didn’t do something”? Shouldn’t it be up to the people that say that “someone is doing something” to substantiate their claim?
But again, who cares? Let’s say you’re right and Google and Microsoft have taken it upon themselves to dedicate 2008 to orphan works and put all their lobbying resources behind an effort to pass meaningful legislation. Would this be the legislation they would promote? With all their lobbying might, I’d hope they could do better than this. But let’s say this bill is what they decided to promote. Okay, now what? Even if we presume they’re actively supporting it, that still doesn’t explain how they benefit from it’s passage. What does an illustrator / photographer / visual artists have against these two companies specifically? Why bring them up? These two companies really have little to zero way to directly benefit from orphan works legislation, yet visual artists seem to be reflexively against these companies’ involvement. Why? Is it because those who really believe they could use orphan works policy, like libraries, public interest groups, other visual artists, filmmakers, museums, etc are hard to argue against? Is it because if you include the brands of “Google” and “Microsoft” in any article, you’re more likely to get more readership of the article?
The commenter below brings up campaign contributions. Not sure what that has anything to do with the orphan works debate, since neither of the Candidates have been involved in the issue (neither even sit on the relevant committee). I must admit I’ve been a little too focused on this issue the past few weeks, did Obama and McCain bring up orphan works legislation in the recent debates? This blog brings up the question at least for Obama.
Another commenter elsewhere brings up a Copyright Office staffer that went to work at Microsoft, who was key to the Office’s 2006 report. All true, yet still doesn’t describe how Microsoft has been involved on the Hill lobbying for this legislation in any meaningful way. I still suggest to you that Microsoft has had very little if any involvement on this issue—I wish they had been promoting it more. But so long as you’re digging around for dirt on Revolving Door, take a look at where staffers worked and who they work for currently. My hunch is that you’ll see far more on the side that actively opposed this bill (looking at you, big content industry) than on the side that promoted it.
0tramilagr0, I couldn’t
0tramilagr0,
I couldn’t get to the Ebrandz.com link, but I read the MarketWatch.com link. I wouldn’t dispute what they wrote—that in 2005 Google filed a comment at the Copyright Office for a solution to the orphan works problem, and that later I believe in 2006 that, Microsoft was asked to testify in a Senate hearing.
But at neither of those times was a piece of legislation introduced to address the orphan works problem (take a look at the timeline here). My argument is still that even with the introduced 2006 House bill, that neither of these companies had much interest. Their desire may have been to have wide-open access to digitizing works with impunity, but that’s not even what the 2006 bill would have allowed, let alone the 2008 bill. The MarketWatch article doesn’t get into these details, only referring to old statements of these companies—nothing current. But at least they tried contacting Google and Microsoft:
Did either of these companies put out a statement when the bill passed the Senate? Did they send letters to the Hill praising the Senators who finessed the process? No, all we have from them is two and three year old statements, neither of which addresses current legislation. If that’s the indication that Google and Microsoft are actively promoting a piece of legislation, I’d hate to see when they aren’t advocating for one.
The problem is that even if
The problem is that even if it makes this matter more palatable to say that it benefits the public, this bill removes ownership from private individuals and allows the developement of huge for profit registries.
This proposed bill profits neither the public (at least the non - infringing variety), nor the creators.
This is about companies that don’t create anything, being allowed to make money off a group of low - middle income citizens and their private property. That’s why it’s not headline material with the huge corps vs small creatives. Making the “known” supporters “PK, libraries, archives, museums, universities, indy film makers, and publishers” rather than large corporations that stand to make millions/billions in ad sales and registry fees is certainly a no-brainer.
PS _ from the Wall Street Journal - guess they’re just as uninformed as the rest of us….
‘What we need is a wholesale way to clarify the rights of companies like Google, Yahoo or Microsoft, so they could start to make use of [orphaned works] without an extraordinary burden.’ — Lawrence Lessig
“Both Google Inc. and Microsoft Corp. have lobbied actively for changes to existing laws on orphaned works. For Google, Microsoft, Yahoo Inc. and other Internet players, the Orphan Works bill could therefore offer at least some additional leeway on what they can use and how they can use it online..”
(the Wall Street Journal, Oct. 7, 2008)