SAA Recommends Changes to Orphan Works Bill

Posted on 5/5/2008 by Julia Dudnik Stern | Printable Version | Comments (0)

The Stock Artists Alliance, an advocacy group dedicated to protecting the interests of professional stock photographers, is urging Congress to amend the proposed Orphan Works Act of 2008. Though SAA recognizes the improvements made since the 2006 version of the legislation, it feels the new bill must do a better job of balancing the needs of users with those of copyright holders.

According to SAA legal chair David Sanger and executive director Betsy Reid, "we again risk passage of legislation that will threaten copyright protections and the livelihoods of independent creators." The authors of the SAA response say the proposed legislation includes several elements that invite abuse. The bill does not distinguish between non-profit and commercial users, offering the orphan-works exemption-protection to ad agencies and Fortune 500 companies alongside museums and educational institutions.

The bill also does not restrict the exemption to historical or archival works, allowing the use of an orphan-works defense for contemporary imagery. The SAA believes that such provisions "would doubtless increase the potential for increased unauthorized use of images," offering yet another challenge to artists already facing rampant copyright infringement.

SAA also sees significant shortcomings with provisions regarding privately developed databases, on which this bill relies to facilitate searches prior to using orphan works. The proposed bill does not address the possibility that such databases may not be developed and certified before the law goes into effect. In addition, the SAA stresses the limited operational detail offered by the bill: "There is no stipulation about how these services would work. There is no constraint on costs that might inhibit the participation of copyright holder."

To address such issues, the SAA proposes that at least two databases be certified and in service by the time the visual works portion of the new bill goes into effect in January 2013. The organization feels the orphan-works exemption should only be available if the Copyright Office can continuously certify that such databases are fully functional. To ensure that copyright holders are not deterred from registering, the SAA suggests that at least one of these databases allow free registration; the financial responsibility should be placed on the prospective users by requiring search fees. The organization also stresses the need to link the new online registration system with the private databases, in order to have works uploaded to the former automatically added to the latter.

It also advocates removing the payment exemption for nonprofit educational institutions, libraries and archives. The SAA stated: "These entities are well accustomed to paying usual licensing fees and ought to continue to do so, just like other infringers, if the owner of an orphan work presents a legitimate request."

SAA leaders feel the U.S. Orphan Works Act will have profound global implications. If passed, it would set a legal precedent and increase pressure for similar laws in other countries, including the U.K., where the subject is already under discussion. The SAA is urging the Copyright Office to further improve the language of the bill. The organization wants a public commitment from stock-photo agencies to make their entire collections searchable through the forthcoming Copyright Office-certified databases.

The full text of the SAA commentary on the proposed legislation is available on its Web site.

Copyright © 2008 Julia Dudnik Stern. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-461-7627, e-mail: wvz@fpcubgbf.pbz


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