Thursday, May 8, 2008

Orphan Works - Senate Markup

So, we have the bi-cameral process to thank for the duplication that occurs when the House and Senate seperately consider a bill. We have circumstances like the American Libraries Association supporting the Senate version, the ASMP and PPA supporting the House version, and all sorts of other constituents taking up various other positions for or against.

Yesterday, the Senate took up about a dozen bills during their markup (aka business meeting). At around 10:15 or so, an informal request was made of Sen. Leahy, the bills' sponsor, to "hold over" the bill until next Thursday. Why is it important that it was informal, and why was it important that Sen. Leahy noted this?

(Continued after the Jump)

When a bill is introduced to the committee after being referred from the Senate, where it got it's number, any member of the committee may request that the bill get put off to the next meeting. Generally, this allows the members more time to review and consider the bill, and to hear from constituents and other interested parties (i.e. the ALA, ASMP, PPA, and so on). Next Thursday, the only real way the bill can be held-over again is if the bills' sponsor - in this case, Sen. Leahy - makes that request. The idea is that you don't want any member trying to continue to put off a bill that should be reviewed.

What does this mean to you? Well, if you're so inclined, you have another week to reach out to committee members and make your voices heard. ASMP urges you not to do that, in part, in their recent message - "Stay cool on Orphan Works":
Please do not buy into the hysteria that you are hearing...I assure you that we are working at the table to make these versions of this bill as good as we can. We are working to influence changes that can greatly effect the final versions...There may be a time when we do want you to contact them with a specific message, but now is not the time."
APA writes that
"...APA is asking its members and all concerned individuals to take action by writing your members of Congress to voice your concerns.".
NPPA, in their piece "NPPA Cannot Support Orphan Works Legislation", wrote:
"'We cannot in good conscience support this bill,' NPPA president Tony Overman wrote...Overman urges photojournalists who oppose the bill to immediately write to their representatives.",
And PPA has finally made a statement on the subject -
"Expecting a worse fate if we wait until 2009, and recognizing that it is possible to gain some small improvements yet, PPA is generally pleased with the proposed bills’ direction. We are grateful for significant improvements made on behalf of photographers and artists. We stand ready to support what we hope will be the very best legislation possible—allowing us to prepare for the future copyright fights that are sure to come. "

ASMP's Orphan Works pageAPA's Orphan Works pageNPPA's Orphan Works pagePPA's Orphan Works page


In addition, the SAA (Stock Artists Alliance) makes concrete recommendations that would make OW legislation more paletteable here.

Meanwhile, on the non-photographer's side of the table,
The American Library Association is urging it's members (here):
"We need you to ask members of the House and Senate to support copyright Orphan Works legislation (H.R. 5889, S. 2913) that does not include a “dark archive” provision. While we strongly support legislation resolving the orphan works problem, we recommend the Senate version of the bill over the House version. As time is running out, we ask that you contact your Senators and Representatives (with priority given to members of the Senate), to communicate the library community’s enthusiastic support for orphan works legislation that does not include a “dark archives” provision."

Public Knowledge writes here:
"Two orphan works bills were introduced to begin to bring balance back to copyright law...Having a bill out there with specific language helps a lot. Some of the visual artists are...already lining up to take their pot-shots at the bill. They’ll try to add more exceptions and carve-outs as poison pills so users will have no use for the legislation. We hope that doesn’t happen and will work hard with our film maker, library, museum, public television, and archive allies to make sure it doesn’t. We’re going to need your help, too, so sign-up on our site, join the FaceBook Rescue Orphan Works Cause, and stay tuned for an Action Alert to write your Member of Congress."


The Association of Research Libraries wrote:
The Library Copyright Alliance (LCA) consists of five major library associations: the American Association of Law Libraries, the American Library Association, the Association of Research Libraries, the Medical Library Association, and the Special Libraries Association. These five associations collectively represent over 139,000 libraries in the United States employing 350,000 librarians and other personnel. The associations participate in the LCA to address copyright issues that have a significant effect on the information services libraries provide to their users....We write to express our appreciation for your introduction of H.R. 5889, ...However, we wish to state in unequivocal terms our strong opposition to the notice of use filing (the so-called “dark archive”), ...As we discuss below in greater detail, the requirement of such a filing will dramatically limit the utility of the legislation for libraries and other important stakeholders.
It seems that there's going to be a great deal of writing to Senators, and Representatives on this subject. For the Senators on the Judiciary Committee, you have at-least another week to write. Then your correspondence would be best sent to those officials (House and Senate) who represent you, unless the bills go back to markup again. NPPA's piece concludes in noting, about the 2006 House version - "In 2006 that year's orphan works bill died in committee when its sponsor, Texas Republican Rep. Lamar Smith, withdrew the bill from consideration at the committee’s final mark-up session for the term. Smith told the committee that he didn't see any reasonable chance that the the Copyright Modernization Act of 2006 (HR 6052) would be signed into law during that year's session." There's not too many in-session days left in this term, so this could well be the final disposition of the 2008 bills.

If so, there's always next year, and they say - "the third times' the charm." Who'll get the brass ring next time?
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Posted by John Harrington at Thursday, May 08, 2008 8 comments  

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Wednesday, May 7, 2008

Liveblogged - The Orphan Works Markup

Well, it appears that the House Judiciary Committee has opted not to live webcast the markup. has, after all, decided to webcast the markup. We'll live-blog it for the next hour or so, since we're in between assignments, and wanted to get a listen to who's saying what. Since we're not set up for liveblogging with an auto-refresh feature, you'll want to hit the 'reload' button every three to four minutes to see what we've added.

(Comments, if any, after the Jump)

We're arriving there shortly.....

2:02 - We're here. The comittee is still discussing retail gas prices - the hearing before the one on Orphan Works.

2:08 - still discussing oil. Hearing wrapping up shortly. Feels like it will wrap up shortly.

2:10 - previous hearing concludes. Members switching out, should begin shortly.

2:14 - The House has just called a five minute vote. Those in charge of the webcast are indicating that they WILL be webcasting the markup. It may be as long as 30 minutes before they start.

2:21 - No members in the hearing room yet.

2:24 - Doors open. Members of the public interested in Orphan Works are filing in.

2:28 - An additional inquiry made about Live Webcast link. Technicians indicate it will be on the site "shortly."

2:29 - Link now active. You can get to it from THIS LINK as well, or go direct from the committee's website.

2:31 - 13 minutes remain in another vote that was called on the House floor.

2:36. 8 minutes remain in the floor vote. The microphones were just tested.

2:47 - the room is almost full, staff is behind the rostrum, but there are no members here yet.

2:57 - I can see the webcast. It's streaming the eagle seal that is on the wall in the back of the room. No members yet.

2:59 - another vote has been scheduled.

3:06 - one amendment is being discussed here, before things get started.

3:08 - 12 minutes remain in another House vote. No members yet, but at-least one amendment is confirmed, in the behind-the-scenes scuttlebut going on here.

WIth that in mind, you are best served being returned to your regularly scheduled programming - the live webcast. Please direct your browsers to the House Judiciary Committee's web page for the webcast.

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.


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Posted by John Harrington at Wednesday, May 07, 2008 1 comments  

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Tuesday, May 6, 2008

Orphan Works - History In the Making

Whether you're for it, or against it, there's nothing like learning about the process that goes into lawmaking. Usually, you'd likely turn a blind eye to how things happen, but this is going to affect you, so I encourage you to take a look. The House bill that was introduced is going to be debated today in what's called a "Markup session", at 2pm Eastern time. The House Committee on the Judiciary is scheduled to amend and re-write the Orphan Works bill, and, at the end of the day, the Chairman, Howard Berman will either take an informal tally, or have a formal vote, on the bill. If he doesn't think he has the votes to move the bill forward, without a big fight, he'll likely table the bill, and it will do what's called "die in committee." In an election year, people tend to save their political might for bills that will make them look good in their home districts, and easy fights are far better to move through than those where there are opposing parties. The Chronicle of Higher Education is reporting that the American Library Association favors the Senate Bill over the House Bill, and "...is urging its membership to contact their senators and representatives in the U.S. Congress and press them to support the Senate version of a bill, S 2913, that would make it easier for people to exploit orphan works...A comparable bill in the House of Representatives, HR 5889, is flawed, the library group states, because it includes a “dark archive” provision that would require people to notify the U.S. Copyright Office of their intention to use an orphan work." Check out the ALA Action Alert by clicking here.

(Complete post, after the Jump)

Here's a short (but informative) FAQ on how a bill becomes law - click here. To check out the Schoolhouse Rock story on how a bill becomes law, for a brief 3-minutes of nostalgia, click here.

Here's a more in-depth piece, worth reading, that explains, in part:
MARK UP: After public hearings have been held the committee meets to discuss, revise and vote on the bill. A committee can defeat a bill, hold up action on a bill for weeks, amend it beyond recognition, or speed its way through the legislative process. The vast majority of the more than 10,000 bill that are introduced in Congress each year die in committee for lack of support.
When we contacted the committee earlier today, as there was not a "view live webcast" button for this session of the committee, we were assured that there would be a webcast, since the markup was taking place in the full hearing room. If, for some reason, it's not there by around noon or 1pm, I encourage you to call 202-225-3951, and ask why you can't view the webcast of the markup. If no one calls, they won't bother if they weren't going to broadcast it. If many people call, when they weren't going to, they may well change their minds. Check this link for the details.

It's been said that you never want to see how sausage is made. So too, is it often times painful to see how legislation is made. So, take a gander at the proverbial "sausage factory" that takes place on Capitol Hill. It'll be an eye opening experience, whether you're for or against it.

How this bill ends up will be historical if it is reported out of committee, and historical in that it will serve as a basis for next session's version. Either way, it's history in the making.
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Posted by John Harrington at Tuesday, May 06, 2008 5 comments  

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Monday, May 5, 2008

Speedlinks - 05/06/08 - Orphan Works Edition

There is a great deal of information floating around the internet about the Orphan Works legislation that is now pending before Congress. I've received many many letters on the writings I've posted here from people of stature, or of note who wrote things from "articulate, balanced and makes some great points", to "borders on 'egregious'", to "you are simply wrong on many of the facts." While I stand by the content of the original piece, and no one has pointed to anything in my post that was inaccurate, to date, for now, I'd like to direct you to several places so you may become more informed, but you can expect to hear more from me (much more) on the subject moving forward, and down the road.

It is absolutely critical that people take away from this discussion, debate, and discourse, that reasonable people can - AND DO - disagree. Let us all move forth with this in mind.

(Continued after the Jump)

There are, to date, two photo trade organizations that are in support of the current form of the House bill - ASMP, and PPA. Missing in a position (as of now) are NPPA, APA, and EP, although NPPA wrote an article here that outlines ASMP's position, without taking a position of their own. Although, it could reasonably be argued that NPPA's citation of the ASMP position without taking a formal one of their own takes a step in the direction of support of ASMP's position, but that remains to be seen. Neither ASMP or PPA supports the Senate version - ASMP's language to make this point is "We believe that the Senate version could still benefit from some changes." Ok. So, I encourage you to read what ASMP has written. Understand, as I misunderstood - I thought that the ASMP's comparision on their site is from the 2006 version of the bill, to the current version, which I mistakenly thought would demonstrate where negotiations had occured to benefit copyright owners in the new bill. However, the comparison is between the pre-bill Copyright Office ideas that they sent in their proposal to Congress, and the current version of the bills under the microscope. ASMP's take on the bill (I haven't seen PPA's yet), and their arguments for it, should be read here:

Update on 2008 Orphan Works legislation, which notes, in part:
"After months of discussions among Congressional staff and the parties with an interest in this legislation, bills were formally filed...ASMP believes that, on balance, the House version is a bill that photographers can support. We believe that the Senate version could still benefit from some changes...As with any legislation, one could always wish for more favorable terms. Realistically, though, the House bill is about as good as photographers are ever going to get. If the bill is not passed this year, it will return in the next session of Congress, when at least one of the crucial subcommittees will be under different leadership. Based on the track records of the legislators who are in line for leadership, it is almost certain that they will write legislation that is far less friendly to copyright owners than the current leadership."
From the Stock Artist's Alliance, comes their position:
"The Stock Artists Alliance has just published extensive commentary about Orphan Works as a resource for artists and other members of the visual arts community who will be affected by this legislation."
Public Knowledge has a good read on Orphan Works, They state:
"Two orphan works bills were introduced to begin to bring balance back to copyright law—to help find owners and encourage new and creative uses of unexploited copyrighted works...the Senate bill is what I’ll call the “clean version.” It’s language is at the root of the House bill without the additional gimmes for owners. It has the characteristics of what I described above and, in PK’s opinion, would need very little tweaking, if any. One provision we would like to see is in the registry certification requirements, that these registries be free for public searches and machine readable."
Duke Law's Center for Study of the Public Domain has a good read on the perspective from the side of the potential users of orphaned works:
The costs of an inadequate system of access to orphan works are huge: needlessly disintegrating films, prohibitive costs for libraries, incomplete and spotted histories, thwarted scholarship, digital libraries put on hold, delays to publication...The difficulty of access to orphan films is a matter of crisis because these works are literally disintegrating. At a time when digital technologies allow for more sophisticated and cheaper restoration and distribution of old films, uncertainty about copyright status has impeded restoration efforts.
Plagarism Today:
"my initial thoughts are that the bill’s chances of passage are slimmer than many think...it also has very little support from copyright reformists, such as Professor Lessig, who deal heavily with the orphan works issue. The bill has no real champion among the people..."
Larry Lessig, generally speaking on Orphan Works, is worth a read:

Copyright Policy: Orphan Works Reform:
my op-ed in the NY Times...proposed one system for dealing with orphan works -- register your copyright after 50 years and pay $1; if you don't the work passes into the public domain...The Copyright Office's report is brilliant. Its proposal is less brilliant. I think this both goes too far, and not far enough...Too far: By applying the remedy to all works immediately, the work imposes an unfair burden on many existing copyright holders..."

Keep reading. I will write more, ASMP will write more, PPA will probably write something, APA will write something, and the dialog will continue. The worst thing that you could do is to just march in lock-step with someone else's position on this because so-and-so said so. listen and pay attention - this really will affect your lives for decades to come.

Remember though - we have about 47 effective working days for members of the House and Senate to take testimony, debate and discuss in committee, schedule for a floor vote, debate on the floor, in both chambers of Congress, vote, appoint conference committee members, hash out a final compromise version, re-schedule the conference report for a vote, debate it, vote, and send it to the President for his signature. Otherwise, these bills die in this session of Congress, and must be started - essentially from scratch, next January.
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Posted by John Harrington at Monday, May 05, 2008 1 comments  

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