On April 24th two different versions of Orphan Works legislation were presented in each of the houses of Congress — a Senate version and a House version.

For over two years, Victor Perlman, the ASMP’s legal counsel, has been working closely with members of the government and other interested industries to gain improvements in the legislation. He is familiar with the people involved and has met with them to affect the changes reflected in the House bill. In working with the current subcommittee, he was able to reach them on many of our concerns. Subcommittee Chair Howard Berman was very responsive to our issues. I’ve outlined the highlights of the House version below. As you’ll see, there are many hurdles for infringers and protections for image creators that were not included in the original Orphan Works proposal or in the bill that died in the last Congress.

The House and Senate versions are basically similar. However, there are a few major differences in the House version that make it more responsive to our needs. We’re currently taking a position on only the House bill, and we’re continuing to discuss possible changes in the Senate bill with Senatorial staff. We will likely need to mobilize members to help influence legislators in both houses of Congress. We may need your help, so please be ready in coming weeks to take action. Thank you for your support.

The reaction of many is “Why support the House version?” Two main reasons:

The House version includes many provisions that are better than we had hoped.
It is our understanding that the next Chair of the House subcommittee that deals with copyright legislation will not be as responsive to our concerns as this current Chair.
It’s important to note that none of us has a bargaining chip here, only the opportunity to be heard on how this legislation will affect our industry. As Vic points out, “Politics isn’t about what’s fair or right; it’s about what is possible.” The improvements to the legislation are very much the result of Vic’s and other organizations’ efforts to change what was originally proposed.

Making a decision to support any Orphan Works Bill isn’t easy. However, both PPA and ASMP, the only two organizations representing photographers that have actively participated in these discussions, have determined that opposing the proposed House bill would place photographers at greater risk. We believe that supporting the House bill will prevent us from ending up with a law that is far worse.

Several other organizations have been supporting our efforts to negotiate improvements to the Orphan Works amendment. As I write, we are waiting to hear their response to the current proposals. I am very proud of what the ASMP has been able to accomplish by participating in the process that brought about the changes. My hat goes off to Vic Perlman for all his hard work. Cooperation between multiple industry associations enabled us achieve many protections and provisions that will make the Orphan Works legislation better for us all. I thank these organizations, Vic Perlman and the members of ASMP for helping support the efforts that brought the changes this far.

If you have any questions, please feel free to call me. I’d prefer to talk rather than email. We’ll do our best to update everyone as this legislative process continues.

Todd Joyce
President, ASMP

I also urge you to visit Orphan Works for more information. We will have new information posted as it becomes available.

Key differences in the House bill, compared to the 2006 version

A. Before using an orphan work, the infringer has to file a notice of use at the Copyright Office. Notice includes a description of the work, a summary of the search conducted, all identifying information found during the search, a certification that a good faith diligent search was made, the name of the user/infringer, and a description of the intended uses. Failure to comply loses eligibility for orphan works status. The Copyright Office must maintain an archive of notices of use.

B. If someone fails to negotiate reasonable compensation in good faith, or fails to make reasonably timely payment of the agreed-upon compensation, the ability to claim orphan works status is lost.

C. Useful articles (e.g. coffee mugs, key chains, t-shirts, etc.) are not uses that can qualify for orphan works status.

D. The Copyright Office must certify private databases that facilitate the search for pictorial, graphic and sculptural works. The databases must contain name and contact info for author, name of copyright owner if different, title of work, copy of the work (for visual images) or description “sufficient to identify the work,” mechanisms that allow search and identification by both text and image, and security measures to protect against unauthorized access or copying. The Copyright Office has to make a list of certified databases available to the public over the net.

E. Effective date for photos and other visual works is the earlier of (1) the date on which the Copyright Office has certified at least 2 databases that are available to the public, OR (2) Jan. 1, 2013; for non-visual works, effective date is Jan. 1, 2009.

F. The Copyright Office has to study alternative methods of dealing with small copyright claims. It must report to Congress within 2 years of date of enactment.

G. The Comptroller General is directed to study the functions of the deposit requirement in copyright registration, including historical purposes of the deposit requirement, the degree to which deposits are available to the public, the feasibility of making deposits (especially visual arts) electronically searchable by the public for purposes of locating copyright owners, and the effects that any change in the deposit requirement would have on the Library of Congress’ collection; and to report on the study within 2 years after enactment.