There's an ongoing tug of war and a bit of hysteria issuing from several artists' organizations who would see this bill (two bills in fact) killed, while some, including the American Society of Media Photographers, have now gotten behind it (it was justifiably shot down in 2006, then given a major overhaul).
UPDATE 5-20-08: Larry Lessig does not support the bill:
CONGRESS is considering a major reform of copyright law intended to solve the problem of "orphan works" - those works whose owner cannot be found. This "reform" would be an amazingly onerous and inefficient change, which would unfairly and unnecessarily burden copyright holders with little return to the public.
The problem of orphan works is real. It was caused by a fundamental shift in the architecture of copyright law. Before 1978, copyright was an opt-in system, granting protection only to those who registered and renewed their copyright, and only if they marked their creative work with the famous ©. But three decades ago, Congress created an opt-out system. Copyright protection is now automatic, and it extends for almost a century, whether the author wants or needs it or even knows that his work is regulated by federal law.
The old system filtered copyright protection to those works that needed it; the new system regulates indiscriminately. [read on]
via Public Knowledge:
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 their 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.
More on the two bills being introduced, via PK:
Two orphan works bills were introduced to begin to bring balance back to copyright law - to help find owners and encourage new and creative uses of unexploited copyrighted works. Both the U.S. Senate and House of Representatives have introduced orphan works legislation (S. 2913, the Shawn Bentley Orphan Works Act of 2008, H.R. 5889: The Orphan Works Act of 2008), rooted in the same language based on the previous Smith Bill, which was based on the Copyright Office’s recommendation. It's been a long time coming and from working with staff, I know they’re very happy to have the bills finally introduced. Reps. Howard Berman (D-CA),Howard Coble (R-NC), John Conyers (D-MI), Lamar Smith (R-TX), (Chairman and Ranking Members of House Judiciary Committee Subcommittee on Courts, the Internet, and Intellectual Property and Full Judiciary Committee Chairman and Ranking Member respectively) and Sens. Patrick Leahy (D-VT) and Orrin Hatch (R-UT), and their incredible staff members are to be congratulated for working to address concerns of both the user and owner communities.
The concept behind orphan works is simple: after a fruitless search to find the rightful owner, a searcher may then use a copyrighted work without the fear of hefty copyright infringement damages. Independent and documentary film makers, libraries, archives, and museums all have collections of orphaned works that they would like to transform into new works or display, but because they cannot find the owner to ask permission or license the work, the threat of copyright infringement (which carries statutory damages as high as $150,000 per work) freezes them in their tracks. These users already conduct exhaustive searches to track down owners, but for 99.999% of these orphans, the owners cannot be found for a number of reasons: a work wasn't registered, ownership was transferred but never recorded, a corporation went out of business, or the author died without heirs. The almost 20 page bills are drafted to address the 0.001% of the cases out there, to assure owners that the incentives for creation are not lost.
And both bills go a long way to address the fears of owners while at the same time trying to bring visual works owners into the 21st century. Safeguards are put in place to ensure that users put "diligent effort" into their "qualifying searches" (previously known as "reasonably diligent" searches). The Copyright Office will maintain and make available helpful search guidelines from owners and users in the industry and if challenged a court will consider whether the user’s actions were reasonable and appropriate for the circumstances and whether the user employed the applicable best practices. This will promote the creation and development of search guidelines and will help to match more orphans with their owners. The Copyright Office will also have to certify market-based registry services for visual art. We proposed and have written a lot about this idea to address the owners' problem of an ineffective registry. It’s not all that complex: because the Copyright Registry’s online search provides woefully inadequate results (only text based searches and results, no ability to compare digital works against an index of images), the market will fill the gaps so long as they meet some basic requirements. A number of services already exist to answer this call and this provision will further spur innovative uses of modern visual recognition technology - of which, unfortunately, visual artists have never collectively taken advantage.
In the unlikely event of an owner resurfacing, the bill provides for them to be reasonably compensated, and if the user acts in bad faith, the full panoply of copyright infringement damages rains down on them. This was done out of concern, again, for visual artists who have repeatedly said they’re not going to be able to take a claim to court because the value is too low. To go even further, the bills require the Register of Copyright to conduct a study (much like the one that lead to the creation of this orphan works legislation) on remedies for small copyright claims.
But now that the bills are introduced, that doesn’t mean the hard work is over.
[...snip! read full article...]
[...] There's still work to be done, but today's introduction is a big step forward. Having a bill out there with specific language helps a lot. Some of the visual artists are
going to bealready lining up to take their pot-shots at the bill. They'll try to add more exceptions and carve-outs as poison pills so users will have no use for the legislation. We hope that doesn't happen and will work hard with our film maker, library, museum, public television, and archive allies to make sure it doesn't. We're going to need your help, too, so sign-up on our site, join the FaceBook Rescue Orphan Works Cause, and stay tuned for an Action Alert to write your Member of Congress. Again, many thanks to the House and Senate Judiciary Committee staff for all their work on this, the first pro-user change to Copyright Law in almost two decades.
And just to confuse you further, here is an intelligent, informed exception to supporting the bills written by Eric Eldred in response to the post above (in other words: it's complicated!):
Submitted by ericeldred on April 27, 2008 - 12:40am.
I oppose the bills.
Briefly, the original intent for Orphan Works legislation was to correct copyright market failure and improve efficiency. Proposed legislation veers from that purpose toward political compromises that make matters even worse.
In the early days of US copyright law, when the US was still a net importer of works, as China is today, copyright was limited to a short term and to few, specific, areas of protection for the author. After this short term, and outside the boundaries of that limited area, works entered the public domain and could be reused freely. This was considered important to preserve innovation.
As authors and heirs found they could make money from a copyright monopoly, they lobbied Congress for increased protection vs. the public, and they have always got it. With this legislation they get even more, and the public still loses.
Along come computers and the Internet so everyone can be an author and publisher. What happens to the law?
If the copyright term were short and the area limited, then there would be no problem in exclusive rights to the author. If the copyright term is long and the area expanded, then this tinkering does nothing, it only adds to the rights of unknown parties who are not given incentives to produce new works, and it does not give new authors any incentives to reuse the old works, it simply distributes rights and obligations in some indeterminate new way.
Here is an example that might clarify the issue - perhaps you can show that I am mistaken. I want to publish a book on the Internet for free. I can determine that it is not in print but still under copyright by somebody. I guess that the copyright holder has no economic incentive to republish the work either for free or for money. I would be willing to do it for free, but not if it costs money to search for the holder or ask permission. It does cost money to do the search or ask permission, and it would cost me money if the copyright holder later determines I have violated his rights. So I will not publish the work. Basically, there is a conflict between the day-to-day operation of public, interactive, Internet publishing and the longterm copyright monopoly established in current law that is so one-sided for authors.
Congress could improve the efficiency of the market by requiring registration and the Library of Congress Copyright Office to maintain a free, accurate, and accessible database of all works. It will not do that, since it maintains that conflicts with international copyright law. The proposed legislation of privatization does nothing to solve this problem.
The proposed legislation instead tailors its application to that of specific interest groups, not the public domain. So it is intended for resourceful professional publishers that somehow can pay for production, including copyright searches, and control distribution. It adds more and different rights to the copyright monopoly and subtracts from the public domain, and potentially to the rights given to incentivize new works. No doubt these groups favor this redistribution of rights. I do not think the legislation is of general public benefit and so oppose it. If you do not agree, then please think about amending the bills to expire after a period of four years so the matter can be reassessed then.
More on Orphan Works and what's at stake, also via PK:
Statement of Doculink, Film Independent, International Documentary Association, Independent Feature Project, National Alliance for Media Arts and Culture, Public Knowledge, and Tribeca Film Institute
Subcommittee on Courts, the Internet, and Intellectual Property
Committee on the Judiciary
U.S. House of Representatives
March 20, 2008
Re: Orphan Works
Chairman Berman, Ranking Member Coble and Members of the Subcommittee,
Thank you for this opportunity to submit this statement for the record on the issue of orphan works. We are submitting this statement on behalf of the hundreds of thousands of independent and documentary filmmakers and other independent media producers who are members of, or represented by members of: Doculink; FIND (Film Independent); International Documentary Association; IFP (Independent Feature Project); National Alliance for Media Arts and Culture; Public Knowledge; and Tribeca Film Institute.
As a whole, we represent individuals and organizations that produce, exhibit, distribute, collect, preserve, and educate through independent film and media. Our group includes or represents filmmakers, video artists, production facilities, community technology centers, film festivals, media distributors, film archives, after-school programs, community-access television stations and individuals working in the field of film and media arts. We are creators and artists, who rely on our copyrights to protect our creations. In creating our works, we are also users of copyrighted material, and we encounter works that cannot be cleared on a regular basis. Orphan works reform is a critical need for us. As such, we are grateful for the opportunity to express the viewpoint of independent and documentary filmmakers and other independent media producers, and are delighted to offer our perspective on the important issue of orphan works.
Independent and documentary filmmakers create without the benefit of sustained, large-institution backing. Like many artists in the United States, we work with very limited resources, but with great passion and energy, in order to make films and other cultural products that nourish the unique American marketplace of ideas. We rely on our copyrights to protect our vision and allow us to monetize a labor of love, and believe in strong and clear copyright protection. At the same time, many artists and supporting organizations are affected by the uncertainty surrounding the use of copyrighted works for which the owner cannot be found. This is an issue that affects all artists; for small filmmakers, however, the ensuing risk can simply be crippling. Films - even with the exciting advent of digital and other new technologies - are expensive to make. The independent filmmaker must marshal all of his limited resources to raise funds; find locations; rent or purchase equipment; cast actors; hire the many workers needed to produce a film; obtain permits; search archives; license music and footage; travel; edit; obtain insurance and legal representation; pay out funds to secure distribution channels for his work … and the list goes on.
When a filmmaker cannot clear an orphaned work, she is left with two choices under the present system: 1) proceed, using the work, with the knowledge that unknown liability costs- or even an injunction - may lie ahead; or 2) refrain from using the work. For the independent or documentary filmmaker today, there is no real choice.
Some recent history via Lessig.org (this analysis applies to an earlier version of the bill):
For almost a decade now, many of us have been pushing for copyright reform that would address the problems of orphan works. That was a key motivation behind the attack on the Sonny Bono Copyright Term Extension Act. It was the focus of my op-ed in the NY Times after we lost in that attack. That op-ed proposed one system for dealing with orphan works -- register your copyright after 50 years and pay $1; if you don't the work passes into the public domain. That proposal was the basis of Congresswoman Lofgren's "Public Domain Enhancement Act," which was partly responsible for Senators Hatch and Leahy asking the Copyright Office to study the problem of "orphan works."
The Copyright Office's report is brilliant. Its proposal is less brilliant. Its essence is that a work is deemed an "orphan" if you can't discover the copyright owner after a "reasonably diligent search." If the work is deemed an orphan, then the copyright owner's rights are curtailed.
I think this both goes too far, and not far enough.
Too far: By applying the remedy to all works immediately, the work imposes an unfair burden on many existing copyright holders -- who have followed a rule which since 1978 has said, don't worry about such details; it puts an especially unfair burden on foreign and unpublished copyright holders. In my view, photographers and other existing copyright holders are right to be outraged at the proposal. Hiding under the cover of "reasonably diligent search," much of their work will be -- unfairly -- threatened.
Not far enough: The trigger to the Copyright Office's Orphan Works Remedy is whether a copyright owner can be found with a "reasonably diligent search." That standard is just mush. The report outlines six factors to be considered in determining whether a search is "reasonably diligent." The effect of this complexity is simply make-work for lawyers. Libraries and archives will be unfairly burdened. Users won't be able to achieve any real security.
The alternative I propose is a kind of copyright maintenance procedure (like patent maintenance). It differs from the Copyright Office's proposal in three critical ways:
First: It applies just to old works, not to new works. For works after enactment, copyright owners get a 14 year grace period where they need not worry at all about any orphan work requirement. For work published between 1978 and today, there's no orphan work requirement until 2021. And for work published before 1978 (in a time when formalities were the norm), there is no requirement until 2012.
Second: It applies to published "United States works" only -- not to foreign works or unpublished work.
Third: The requirement it imposes after the 14/5 year delay is registration. But not registration with the copyright office; instead, registration with a private registrar approved by the copyright office. No government run registries here. Instead, something more like a DNS for copyright.
This chart at the top summarizes the differences.
You can download a one-page description of the proposal here.