Orphan Works - A Mistaken Perspective

On Friday, an e-mail notice from long-time stock photography promoter Rohn Engh arrived in my inbox. Over the weekend, I finally got around to reading their issue - PhotoResearcher Newsletter, which includes a front page piece by noted attorney Joel Heckler.

I read the piece. And, sadly, there's a number of erroneous conclusions in the piece. This is an example of how people come to conclusions that are not based upon a studied reading of the proposed legislation.

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Hecker's first statement that jumps out as erroneous is that he writes:

In March 2008, Congress revisited the issue with the filing of a 19 page bill in the Senate and a 20 page bill in the House of Representatives. These initial bills were substantially similar.

Anyone who's read the bills will tell you that the House bill is considered the one with all the photo-centric considerations, and the Senate bill is considered the "clean" bill. All of the input by visual artists' groups (including ASMP and PPA) had an impact on the House version, allowing for "useful articles", and so forth. The Senate bill doesn't have all these accomodations. To suggest that they are "substantially similar" is inaccurate especially when ASMP is the only photo trade organization that supports the House's 5/8 version (PPA isn't supporting it, they are just not opposing it - there is a nuanced difference), and many outside of the photo industry are supporting the Senate version, but there isn't a photo group that is. That, in and of itself, should validate the notion that they are not "substantially similar."

Heckler goes on:

The overriding concept of the 2008 bills is that a potential user of an Orphan Work must identify the Work, conduct a good faith diligent search for the copyright owner, and failing to find the owner, file a notice of use with the Copyright Office prior to using the Orphan Work.

Unfortunately, this isn't accurate either. Just the House version of the bill has this as a "possible" final requirement. The Senate version does not include this. The American Library Association is fighting against this provision of the Senate version, so it could well be removed from the final version of the bill. But, to pluralize the word "bill" and suggest that both "bills" have this language is just not accurate.

There continue to be highly regarded and very public members of the photographic community that are suggesting things in the Orphan Works bill versions that just aren't there. Other notables are telling us these bills are going to pass, and that it's the best we can hope for, or else it will get worse next time. Heckler surely is a highly regarded and substantive contributor to our community. Unfortunately, his commentary and conclusions in this piece are, in several places, just inaccurate. And, where Heckler is accurate, his omission of multiple significant issues does much to minimize the sweeping changes that the proposed Orphan Works legislation seeks to make. Thus, many readers could be caused, as a result of his commentary that barely scratches the surface of these issues, to conclude that the proposed new law isn't such a big deal.

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Related Posts:

• Orphan Works - A Unique Set of "Myths" and "Facts", (6/2/08)
• Orphan Works and Licensing Exclusivity, (5/23/08)
• What Are the Odds? The Orphan Works Likelihood of Passage, (5/16/08)
• Apathy Gets You NoWhere, (5/15/08)
• Orphan Works - Senate Markup (5/9/08)
• Orphan Works - HIstory in the Making, (5/7/08)
• Speedlinks - Orphan Works Edition, (5/6/08)
• Orphan Works 2008 - A Wolf In Sheep's Clothing, (5/1/08)
• Orphan Works Act = Thieves Charter? (4/29/08)

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