New Orphan Works legislation released
Two new versions of an orphan works bill were introduced last week in the House (H.R. 5899) and Senate (S. 2913). PDFs of the bills, along with a clear and detailed overview of the orphan works problem and the proposed solutions, are available at Public Knowledge.
The bills are a mixed bag. There are some substantial changes from the Orphan Works Act of 2006, several of which are clearly intended please copyright holders who fear that orphan works legislation will erode their ability to control uses of their work. Some of these concessions are only in the House bill.
The first is a new requirement that users of an orphan work must register a “notice of use” with the Copyright Office. According to the House bill:
Such filings shall include—
‘‘(A) the type of work being used, as listed
in section 102(a) of this title;
‘‘(B) a description of the work;
‘‘(C) a summary of the search conducted
under paragraph (1)(A)(i)(I);
‘‘(D) the owner, author, recognized title,
and other available identifying element of the
work, to the extent the infringer knows such in
formation with a reasonable degree of certainty;
‘‘(E) a certification that the infringer per
formed a qualifying search in good faith under
this subsection to locate the owner of the in
fringed copyright; and
‘‘(F) the name of the infringer and how
the work will be used.”
This will make is much easier for concerned copyright holders to keep an eye on things, because anyone who hopes to make a legitimate, protected use of an orphan work will register that use with the Copyright Office. The downside is that the process of registering the use of an orphan work may turn out to be difficult and expensive.
Georgia Harper’s take on the new orphan works legislation, especially the notice of use registry, is quite negative, and well worth a read. She says:
The House version of the bill is so burdensome I would much prefer just to rely on fair use, even with all its uncertainty, than to know for certain that the burden for each and every use is so extremely high, and likely very expensive to carry out (probably costing considerably more than reasonable compensation would have cost if there had been an owner to pay it to). The bill seems intentionally designed to discourage use, not to encourage it. (I can hear the “yes!” responses from orphan works legislation opponents.) Since we already have plenty of discouragement in the form of draconian remedies, I can only conclude that the architects of this bill were in fact worried that people might actually proceed with uses of orphan works if there were no bill.
Another new addition is a requirement that the Register of Copyrights will develop a certification process for electronic databases that will “facilitate the search for pictorial, graphic, and sculptural works that are subject to copyright protection under title 17, United States Code.” This by itself is not bad news – we need resources that make it easier to find information about copyrighted works, and the Copyright Office should be leading the way in promoting the development of those resources. Unfortunately, these registries are likely to be run by private entities, and will likely charge fees for use. Furthermore, in order to have time to develop standards for these image databases, the House bill will not take effect for pictorial, graphic, and sculptural works until after the Copyright Office has certified no fewer than two “independent searchable, comprehensive, electronic databases, that allow for searches of copyrighted works that are pictorial, graphic, and sculptural works, and are available to the public through the Internet,” or on January 1st, 2013, whichever comes first. January 1st 2013 is not soon. And pictorial and graphic works are some of the most notoriously difficult orphans to track down, as well as some of the most fragile.
Other observations… The new draft has language that explicitly exempts non-profit educational institutions, libraries, and archives from having to pay monetary damages, as long as their use is noncommercial and “primarily educational, religious, or charitable in nature.” There was similar language in the old bill, but it didn’t single out any particular kind of institution; I’m not sure if the new phrasing is better or worse, or just different.
And a last note to the illustrators and photographers who have been up in arms about orphan works legislation: the following language was in the 2006 version of the bill as well, and it still negates any claims that orphan works legislation will permit people to steal all unsigned photographs and images:
LACK OF IDENTIFYING INFORMATION.—The fact that a particular copy or phonorecord lacks identifying information pertaining to the owner of the infringed copyright is not sufficient to meet the conditions [for eligibility] under paragraph (1)(A)(i)(I).
In other words, the mere lack of a copyright notice or name attached to the work is not enough for someone to declare a work orphaned.
Overall, I think the orphan works bills, especially the Senate version, are a small step in the right direction, but ultimately their effectiveness will depend a great deal on how they are implemented. Too many concessions to the anti-orphan works lobby, and meeting the requirements to protect users of orphan works will be too difficult, rendering the legislation essentially useless.
[Cross posted, sort of, at Multi-Purpose Librarian]
