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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Anonymous said...

Thanks for trying to make sense of this lunacy. But can anyone understand the ASMP position?

To quote myself from

'Earlier, on 13 March, while the Bill was still a rumour, the ASMP wrote :

"In a nutshell, we see little financial harm to creators from the non-profit and non-fiction uses of orphaned images. At the same time, we want to make sure that commercial users of images and illustrations would not be able to use an Orphan Works defense as a free pass to profit from infringements."

That made perfect sense. Unfortunately the Bill as it emerged places no such restriction on commercial use. It is exactly the 'free pass to profit from infrimgements' that the ASMP then warned about. So why are they not saying the same now? I think we should be told.'

The SAA blog posted "Orphan Works Bill: Legal Opinions Vary" c/o Selling Stock yesterday, giving the opinions of
"Two key photo industry attorneys, Nancy Wolff and Carolyn Wright". Wright describes the Bill as an "extreme danger" to copyright holders. Both agree the cost of litigation will make challenging orphan status and unreasonable compensation impracticable for photographers. I can't understand why any US photographers' organisation would give the slightest support to such a proposal. Can anyone?

Anonymous said...


See comment number 12 by Constance Evans APA National CEO at the APE blog post "Urgent: Orphan Works Bill"


Quite enlightening as to the BS and dick waving that is going on by the ASMP.

Anonymous said...

It is truly sad the ASMP is taking the position that "they" speak for the industry and that "they" are working behind the scenes.

My interest and respect for ASMP declined years ago after seeing the machinations behind the scenes that Weisgrau and Pearlman orchestrated.

It appears that Pearlman may be more concerned about being "the voice" of the industry, rather than speaking up for what is right for the industry.

Rather than working together with all the groups and coming together with a common voice, Pearlman presents himself to Congress as the representative of most of the photographic industry. I would rather see the directors of the major photographic associations come together at the same table and present their opinions to Congress.

Pearlman was not elected to "represent" the business interests of photographers.

What a shame and a travesty.

Anonymous said...

@anonymous, thanks for that.

But passing over the evident organisational cluster-fuck and allegedly megalo-exceeded authority, ASMP's Perlmann still delivered testimony to Congress that contained the following:-

"Instead of changing the safe harbor provisions, we suggest the possibility of limiting the scope of the Orphan Works defense to:
1. Uses by individuals for non-revenue producing personal or community purposes, including uses on websites that do not generate revenues for the individuals using the Orphan Works; and
2. Uses in works of non-fiction, such as books, articles or documentary films or videos; and
3. Uses by non-profit educational institutions, libraries, museums or archives qualified for treatment under §501(c)(3) of the Internal Revenue Code as amended, --
a. in exhibits, including website displays, and
b. for uses that produce revenues and that are ancillary to exhibits, such as souvenir sales in connection with exhibits by such libraries, educational institutions, and archives."

Yet OWA2008 enables full commercial exploitation of anything that can be plausibly designated an orphan. Elsewhere in his testimony Perlmann asserts that 90% of photographs are orphans, so it's not as if he doesn't realise the scope of this thieves' charter.

The limitations he suggested were critical and Congress ignored them. Which is an indication of very different motives than the ostensible problems outlined by libaries and curators that are supposedly driving this Bill.

What epiphany led the ASMP to override all that they knew and back this toxic scheme? Why do they now think they can support legislation that will force
not only ASMP members but every photographer on the planet to compete on price with 'orphans'? Because that is the biggest danger here, that not only will pro work be stolen, but a whole culture of the user dictating unreasonable prices will be born, with Googleimages the new iStock.

ASMP knows this! Half Perlmann's testimony is filled with observations that litigation is priced beyond reach and registration is too. And even if they weren't, for US photographers, US publishers have the rest of the net they can safely rip off. Does he have a better job offer somewhere, or something? Because turkeys don't usually vote for Christmas.

Anonymous said...

The idea that the non-profit and not-for-profit world has little or no financial ramifications for artists is completely false. Their status only dictates the way there funds may or may not be used. Cultural organizations are big business and have the funds to go with it. Museums routinely license rights to images they have in their collections for real money. I have made a decent living largely catering to not-for profits. Are they the biggest budgets? No. Are they significant? Yes. Can they pay for there image uses? Usually.

Anonymous said...

Oh I agree, and I'm not endorsing the original ASMP position. I certainly do not : most of my paying work is for non-profits. But the ASMP has moved here from giving up the sub-prime third of the territory to giving up all of it. The first is perhaps intelligible as a trade-off that they feel impelled to make, where the latter is suicide.

Anonymous said...

Thanks JH for breaking all the political speak into plain english. I'm still not sure why ASMP sent out that email. Strange. Like crazy pill strange.

Anonymous said...

OK can someone explain: How a diligent search will work, bearing in mind that under the Berne convention one does not have to register copyright, who is going to be enabling a search mechanism?

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