The Senate Judiciary Committee passed a revised version of its orphan-works bill last Friday. The American Society of Media Photographers, which feels that "just about every single change benefits users to the detriment of photographers and artists," is urging its members to oppose the revisions.
Similar to the House version, the revised Senate bill precludes uses of orphan works on T-shirts and other useful articles. However, ASMP characterizes other changes as less photographer-friendly.
One of the changes revolves around what many have described as having to police infringements. Though the copyright owner is no longer required to provide proof of ownership, he or she would have to supply information that identifies materials containing infringing works. Another change further limits the pressure on the user to negotiate with the copyright owner. The revised S. 2913 still requires a good-faith negotiation, but a newly added clause states that infringers will not be penalized for failing to reach an agreement on compensation.
Perhaps most significant is the Senate's decision to remove a provision that allowed a portion of the revenues generated by a constructive use to be awarded to the copyright owner. Now, entities falling under the safe harbor-such as a museum that may use an orphan work in a for-sale product to raise funds-no longer have to share the proceeds they earned from the infringement.
"Notwithstanding the limitation established under subparagraph (B), if the owner of an infringed copyright proves, and a court finds, that the infringer has earned proceeds directly attributable to the use of the infringed work by the infringer, the portion of such proceeds attributable to such infringement may be awarded to the owner."
ASMP is urging its members to contact their senators and ask them to oppose the bill, unless it is amended. The minimum provisions recommended include users filing prior notice or losing eligibility for the orphan-works exception, the creation of an archive of such notices and other protections offered to copyright owners by the current version of the House bill. ASMP's orphan-works page provides sample letters and additional details on the revisions made to S. 2913.
ASMP is not frivolous with voicing opposition. When separate versions of the orphan-works legislation were first introduced during this congressional session, ASMP supported the House rendition. Pragmatically, the organization described H.R. 5889 as "as good as it is going to get." That bill remains under review. The House Judiciary Committee plans to hold a closed meeting with undisclosed parties before making revisions and passing it.
If substantially different bills pass both the House and the Senate, further reconciliation proceedings are likely. Such negotiations are likely to be addressed by a new joint committee. The eventual compromise bill will go directly to the floor of both houses for a non-amendable vote.