The Controversial Orphan Works Copyright Bills--Page 2

Continued from page 1 of the Brabec Bulletin

July 30 Update: This Bill has been put on temporary hold.

Barbara’s thoughts on the Orphan Works bills, e-mailed to her state’s senators, with excerpts from the replies she received.

The Controversial "Orphan Works" Copyright Bills

Update on the Status of the Orphan Works Copyright Bill, from Illustrators’ Partnership Organization

The following message explains the status of the copyright bill and also offers insight on why some bills are passed and others are put on hold.

July 30, 2008: We've just received word that the Senate bill has been put "on hold." In fact, there appear to be multiple holds on it. Senators who 'hold' hotlined bills do not have to identify themselves nor give their reasons for holding it. Holds are temporary. Most people are unaware of the process called hotlining. In the past it was used to pass non-controversial legislation, but increasingly, it's being used to pass bills whose sponsors don't want to see debate. An excellent article in Roll Call explains the process. Here's an excerpt:

Senate conservatives are upset that the leaders of both parties in the chamber have in recent years increasingly used a practice known as "hotlining" bill—previously used to quickly move noncontroversial bills or simple procedural motions—to pass complex and often costly legislation, in some cases with little or no public debate. The increase was particularly noticeable just before the August recess, when leaders hotlined more than 150 bills, totaling millions of dollars in new spending, in a period of less than a week.

The practice has led to complaints from Members and watchdog groups alike that lawmakers are essentially signing off on legislation neither they nor their staff have ever read.

In order for a bill to be hotlined, the Senate Majority Leader and Minority Leader must agree to pass it by unanimous consent, without a roll-call vote. The two leaders then inform Members of this agreement using special hotlines installed in each office and give Members a specified amount of time to object--in some cases as little as 15 minutes. If no objection is registered, the bill is passed.

- From 'Hotlined' Bills Spark Concern, by John Stanton, Roll Call Staff, September 17, 2007 (Read full article here.)

This is the second time the Senate Orphan Works bill has been hotlined this summer. The previous hotline came on June 5, the same week artists descended on Washington to urge lawmakers to oppose this controversial bill. The bill was put on hold that time too.

Since bills can be hotlined without prior notice, we'll all have to stay vigilant throughout the rest of this legislative session.

EDITOR'S NOTE: If you are concerned about this legislation and have not yet contacted your state’s Senators, click back to the original article on this topic.

Barbara’s thoughts on the Orphan Works bills, e-mailed to her state’s senators, with excerpts from the replies she received.

Although I’m not a visual artist or professional photographer who has to worry about protecting a copyright on something I’m selling, I AM a hobby photographer and I AM creating original photographic images for use on my Websites. So when I decided to send an email to my state's senators, I selected the template for "The Image Making Public" and inserted my personal comments in the section that allows for editing, saying, in part:

"I am an author who manages a growing number of websites that include my digital photos and original graphic images. The Orphan Works law would force me to pay a fee to register each and every photo and graphic image I wanted to protect, but, in the end, the piece of paper saying the image was registered wouldn't amount to a hill of beans. In the event I could actually find those who are infringing my work, I wouldn’t have the time or money to take an infringer to court. Even if I did, he would probably say, ‘So, I infringed your work. I looked in a couple of registries and didn't find it there, and the picture didn't have a name on it when I found it, so sue me and prove it's yours.’

"My problem is small compared to those of the many professional artists and photographers on the Web who make a living from their work. They have enough problems now trying to protect their copyrights from infringers without adding this new legislation to their plate."

Shortly afterwards, I received replies that told me my messages had been delivered and at least noted by someone. (Even if our legislators don’t read every email they receive, they have to be impressed whenever they begin to receive a huge volume of mail on a particular topic.) Following are excerpts from the replies I received; both offer additional insight into what’s wrong with the Orphan Works bill:

From Sen. Barack Obama:

"As you know, the term "orphan works" refers to copyrighted works whose owners are difficult or impossible to find. The U.S. Copyright Office has expressed concerns about the uncertainty surrounding the ownership of orphan works, and this view has been reiterated by both copyright owners and users, including artists and libraries. I have heard from many constituents who believe that this uncertainty discourages subsequent creators and users from incorporating orphan works into new creative efforts, or from making these works available to the public.

"At the same time, you raise some important concerns regarding the potential implications of orphan works legislation on the photography and visual image industries, including many of my constituents who are photographers, illustrators, and graphic artists. It is often exceedingly difficult to find the copyright owner of a visual image, generally because the name of the image’s creator is not on copies of the work distributed to the public. Thus, there is a real danger that the works of some of these artists might be inaccurately labeled orphan works.

"As you know, this danger exists whether or not new legislation addressing orphan works is passed. However, I do understand your concerns regarding the new compensation mechanism proposed for orphan works use.

"The Copyright Office has proposed that in most cases, including all commercial uses, the user of an orphan work would be obligated to pay the copyright owner ‘reasonable compensation’ for the use prior to the time the owner resurfaces. Also, the user will generally be unable to continue making use of the work after the owner asserts his copyright. The problem is that litigation costs associated with asserting this right to ‘reasonable compensation’ may be prohibitively expensive for many copyright holders. This critical point should be taken into account in ongoing discussions over orphan works legislation.

"S. 2913 was introduced on April 24, 2008 by Senator Patrick Leahy (D-VT). It was referred to the Judiciary Committee for consideration. A companion measure in the House of Representatives, H.R. 5889, was approved by voice vote on May 8, 2008, by the Subcommittee on the Internet and Intellectual Property. While I do not serve on the panel considering the Orphan Works Act, you can be sure I will remember your concerns should this bill come before the Senate floor. "

From Sen. Richard J. Durbin:

"The Chairman of the Senate Judiciary Committee, Senator Patrick Leahy of Vermont, has introduced the Shawn Bentley Orphan Works Act of 2008 (S. 2913). The legislation would allow people and companies to use artistic works without risk of statutory infringement damages, if the user performs a diligent search and is unable to find the copyright holder. Under the measure, if the copyright holder later surfaces, the user must pay the copyright holder reasonable compensation and/or discontinue the use of the work.

"Supporters of the legislation point out that it would enable orphan works to be used by families, museums, libraries, and educational institutions. They argue that without the measure, many artistic works are effectively prevented from use. In particular, supporters emphasize the historical importance of being able to restore and share photographs, letters, films, and other documents whose authors or creators may be untraceable.

"At the same time, opponents of the legislation are concerned that the bill does not provide strong enough search requirements or an effective remedy to deter users who intentionally avoid performing a copyright search. They also worry that the legislation's reach will extend beyond orphan works and negatively impact working artists' ability to protect their creations.

"The Shawn Bentley Orphan Works Act has been reported out of the Senate Judiciary Committee. You have raised some important concerns about these issues. I will keep your views in mind should this legislation come before the full Senate for a vote. "

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