Senate Marks Up Orphan Works

This morning the Senate Judiciary Committee marked up their version of the orphan works bill, S. 2319, The Shawn Bentley Orphan Works Act of 2008. I live twittered the markup, but in the off chance you weren't following my tweets, the markup was fairly uneventful.

The line was quite long for a markup. The usual characters (read: those who probably had line-standers) were at the front of the line nearest the entrance to the Judiciary Committee Hearing room. That didn't include us. The room filled up so we were directed to the overflow room to watch the happenings on closed-circuit tv.

Chairman Patrick Leahy started off the orphan works portion of the markup by introducing the manager's amendment and asking that the Committee consider adopting it as the language of the bill going forward.

Sen. Sam Brownback (R-KS) proposed an amendment that would have appended the Internet Radio Equality Act (IREA) to the orphan works bill. Chairman Leahy said that the webcaster music licensing issue was an important one that deserved attention, but asked that Brownback withdraw his amendment with the understanding that further deliberations on that issue be considered in the pertinent subcommittee, possibly with a broader hearing on music licensing. This was seconded by Sen. Dianne Feinstein (D-CA). Brownback then withdrew his amendment.

After that, things wrapped up pretty quickly and the Committee voted to pass the bill out of Judiciary Committee favorably.

The changes in the bill are not drastic, more like little tweaks. The "useful articles" exemption was added from the House bill (read more about that here), some minor changes were made to the best practices / diligent search language to allow for multiple best practices per category (and with the discretion of the Copyright Office, subcategory) of work described in Sect. 102. This language continues to be worked on by interested parties to make it clearer to the Copyright Office what the process for creating best practices should look like--so that owners, authors, and users are all represented.

The database provision was pruned back quite a bit, in an effort to expedite the certification process. Whether this was wise or not remains to be seen, as less guidance is given to the Copyright Office as to how to certify these electronic databases. Also removed was any requirement that these databases even be available via the Internet. We would have liked further guidance for the C/R Office as well as for the sprouting services in market, to make it known that these resources should not be locked-down silos of information nor left unaccessible to anyone via a simple Internet connection. The bill doesn't preclude possibilities, but as drafted, it doesn't prescribe them.

PK sent our letter of support to the Senate Judiciary Committee last week and our support for the legislation stands. We are encouraged by the pace with which these bills are moving through the committees, how responsive staff continues to listen and address concerns from all parties, and the relationships we continue to build with other interested stake holders. Of course, it would be great to have everyone (including illustrators, photographers, graphic artists and textile manufacturers) in agreement, hopefully we can get continue to close the gaps in our differences so that their honest concerns are addressed while allowing good-faith users use of orphan works.

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