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 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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Anonymous said...

Look at this issue parallel to the FISA renewal with immunity attached bills. The Senate version totally caved to retro actively granting immunity to lawbreaking telecoms at the behest of questionably granted powers of the President. It stalled in the House because enough folks said this is bullshit and all of a sudden the fear mongering shriveled up and common sense prevailed. Can this bad sausage patty and let them,whomever the proponents are of this tripe, come back to the table with something more palatable, actually survive the sunlight this is currently getting?. Feed me some examples of what the "other" side is really up to as far as having to have this bill in the can asap and no one will agree that it is a life or death scenario we have to resolve for the National Security of our country. If National security measures can be postponed in the name of reason and transparency SURELY a copyright bill can too. Thanks again to John for his measured, sensible, articulate presentation of the facts. Just by proximity to the largest sausage making factory in the world should garner him the ultimate credentials. Make them come back with something better.

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