There has been a lot of discussion going around about Orphan Works and the current bill in the House. Many of you have been getting e-mails urging you to fight this bill by writing your Congressmen. Please don’t and read on. The time may come when your input is needed, as it has been in the past, but right now, let’s not alienate our representatives.
Instead, I urge you to check out the links in this article to answer some of your concerns and set the record straight. If you have other questions, please do not hesitate to contact ASMP.
In a nutshell, the originally introduced Orphan Works bill, part of the proposed Copyright Modernization Act of 2006 (HR 6052), was initiated at the behest of publishers, museums, scholars, and others who wished/wish to use the works in legitimate ways. However, as authored, it would have eroded copyright protection for visual artists such as photographers, illustrators, and textile designers, so ASMP and other creative trade groups banded together to effect positive changes, but it died in committee.
As we all expected, another bill was drafted, (HR 5889). Unfortunately, a lot of BIG businesses who are not educational have gotten into the act and have fought to make the Orphan Works bill favor them. The good news is that the Honorable Howard Berman (D CA), Chair of the House Subcommittee on Courts, the Internet and Intellectual Property has been sympathetic to our plight and has worked with us to effect positive change in this bill. In spite of this, harsh reality dictates that we will not get everything we want, but the goal is to minimize the damage to creatives such as ourselves and introduce some elements to the bill that work in our favor.
The House Subcommittee has invited ASMP (over 5,000 members), PPA (more than 20,000 members), and PACA (over 100 North American companies and over 50 international members) to present testimony on behalf of the creative world. It has been said that ASMP has been in secret negotiations, excluding other trade groups. These allegations are ludicrous, since one is invited to testify before a House Subcommittee based on one’s reputation for integrity. One cannot insinuate oneself into these hearings. I know, because my elder daughter was surprised and honored when she was invited by another Congressional Subcommittee earlier this year to testify as an expert witness.
It should be noted that once this session ends, The Honorable Berman will be leaving as chair of this Subcommittee, and the likely candidates for successor are not going to be on our side. Our best —albeit not-ideal — chance, is to work on this bill as it will be the least onerous of anything proposed in the future.
On May 12th, Rich Halperin, President of NANPA (over 3,400 members), also came out in favor of this bill as being the best bet we have.
I would like to point you to some very informative websites that may address some of your concerns and set the record straight, but before I do, please read a message — used with his permission — from Peter Krogh, author of The DAM Book (Digital Asset Management). It should be noted that Peter has been working hard with Adobe to make sure that metadata works in our favor to help us protect our copyright. He is also, as you know, a new national Board member, and someone who supports this bill, even though it is not an ideal bill for us:
“Yes, there is a contingency plan - to initiate a letter-writing and calling campaign if the bill coming out of conference does not contain some of the important concessions we've won. Unfortunately, that will be a lot less effective if photographers have already said they won't accept the compromise that is currently offered.
“And we are also working on the issue on other fronts. Some kind of orphan works legislation *is* going to pass. We as an organization (and I personally through other work I do) are trying to prevent the orphaning of works by encouraging good metadata practice. For instance, you could benefit from adding contact and copyright metadata to the images on your website.
“And keep in mind that Orphan Works legislation mostly effects work that has been registered with the LoC [Library of Congress]. So if you are not routinely registering your work, the point is kind of moot anyway (not totally, but to a large extent.) We at ASMP, and I personally, have been working for a long time to raise awareness, and to show photographers how to do this.”
—Peter Krogh
Author, The DAM Book, Digital Asset Management for Photographers
- Update on 2008 Orphans Works legislation
- Audio podcasts on the whole Orphan Works issue, including history
- GovTrack.us Tracks what’s going on in the 110th US Congress — a synopsis of the bill
To get an idea of what the opposition is urging, check out the following:
- American Library Association Think of how many libraries there are in this country!
- Intellectual Property Watch Note the concerns of Emily Sheketoff, Executive Director of the ALA (see above) Washington, DC office
- University of Florida One institution that is all for an Orphan Works bill that might not be in our favor
- Public Knowledge
- The Chronicle Review Note the comments, too!
Zann and Pinkerton Photography and Barefoot Contessa Photo Adventures
