House Resolution 5889 and Senate Bill 2913 are two different versions of the proposed orphan-works legislation currently before the U.S. Congress. Though substantially different from its original form and endorsed by some respected industry organizations, the proposals are meeting with opposition only days after becoming public.
Two years ago, the first orphan-works proposal failed to become law. Membership organizations and advocacy groups working on behalf of content creators put up opposition. The proposed legislation would have allowed anyone to use an orphan work for any purpose, following a reasonably diligent search for the copyright owner. If the owner turned up later, the user could be required to offer reasonable compensation. Artists' advocates stressed the divergent views of reasonable diligence and licensing fees, differences among educational, archiving and commercial uses and the lack of provisions for recouping damages, profits or attorneys' fees.
According to the American Society of Media Photographers, which actively lobbied for revisions that would protect the legal rights of its members, "the [new] House bill is about as good as photographers are ever going to get." ASMP points out that the bill expands the definitions of reasonable search and usage fees, requires prior notice of use to be filed with the U.S. Copyright Office and limits the safe harbor provisions for non-profits and media.
If successful, the effective date of the new law would be January 1, 2013 for visual works, as opposed to 2009 for other copyrighted work types. The delay is to allow the Copyright Office time to certify at least two privately developed image databases of orphan works. In addition, the Copyright Office would have to report to Congress the effects of the new legislation and to recommend changes by December 2014.
The Illustrators Partnership of America says this is still not enough. The organization's board issued an immediate statement of opposition, adding that "many groups are coming together to oppose this bill." The IPA says that the new bill has a critical loophole: Unregistered work will be considered a potential orphan from the moment it is created. If an artist exercises his or her right to not register a work, the Copyright Office would view this as an act of creating an orphan work, according to IPA's interpretation.
Though not directly affected, Editorial Photographers of U.K. and Ireland expressed similar concerns. "This Bill...[can] potentially strip copyright control from every photograph that has not been registered with the privatized commercial registries that the Bill proposes to create. It allows infringers the defense that any work that is unregistered with these agencies is an orphan and may be used," said EPUK moderator Tony Sleep. He views the proposal as taking advantage of weaknesses in U.S. copyright law, including prohibitively high costs of copyright registration and enforcement via filing lawsuits.
This debate is likely to continue for several months. However, there is widespread consensus that orphan-works legislation is inevitable and imminent. In addition to growing demand from academia, educational institutions and nonprofits, technology leaders, such as Google and Microsoft, are lobbying to protect themselves from copyright-infringement lawsuits resulting from content-indexing and other online activities.
If the bill is not passed this year, ASMP warns that the next proposal will face a much less sympathetic audience during the next session of Congress: "Based on the track records of the legislators who are in line for leadership [of several crucial subcommittees], it is almost certain they will write legislation that is far less friendly to copyright owners than the current leadership."