Copyright revamp is on the cards
A US committee has approved a controversial 'orphan works' copyright bill, bringing it one step closer to becoming law.
The US House of Representatives Subcommittee on the Courts, the Internet, and Intellectual Property approved the Orphan Works Act of 2008 (bill HR 5889) on 07 May, meaning that it can now be presented to the House of Representatives for a vote. If passed by both the House of Representatives and the Senate, and approved by the President, the bill will become law.
The bill would allow anyone to legitimately use orphan images - those for whom the author or copyright winner cannot be traced - providing they had put 'diligent effort' into finding the rightful owner. Orphan image-users would be required to file a 'notice of use' with the US Copyright Office, including their name, a description of the intended uses, a description of the work, a summary of the search conducted and all identifying, information found during this search. The Copyright Office would then maintain a database of these notices.
The bill is unlikely to reach the House for a vote before the end of 2008, however, because although the House is sitting in June and July, it will adjourn for one month on 11 August. It will then reconvene for only two weeks in September before retiring until the presidential and legislative elections in November. This schedule leaves less than three months for the bill to pass this year.
US photographers' organisations are divided over the bill, with some now resigned to it while others continue to object. The American Society of Media Photographers, for example, states that the bill is 'about as good as photographers are ever going to get', while the National Press Photographers Association and The Advertising Photographers of America are calling for it to be amended.
NPPA president Tony Overman has written to congressman Howard Berman, who introduced the bill, urging him to change it. 'We cannot in good conscience support this bill,' he stated. 'We recognise the difficulties of managing rights for historical images. We believe a carefully and narrowly tailored expansion of the fair use exception to the Copyright Act would address the legitimate concerns of librarians, historians and educators.
'Therefore, on behalf of our board and 10,000 photojournalists, students and editors throughout the country, I urge you to consider the significant economic and artistic harm this draft legislation could cause and amend it so that it: minimises potential abuse; balances the needs of those who legitimately seek orphan works exemptions; and offers greater protection those who seek to protect their copyrights.'
The Advertising Photographers of America group, meanwhile, says that the bill could put thousands of photographers out of business. 'The legislation offered does not achieve the goal as we believe was originally intended, and instead provides a distinct road map for the infringement of contemporary works by living artists worldwide,' it states. 'If left unchanged, this legislation has the potential to destroy the businesses and livelihoods of thousands of photographers, other visual artists, as well as the collateral small businesses that serve the industry, and are dependent on, creators.'
Photographers outside the US can only watch from the sidelines, although they will arguably be worst affected if the bill becomes law because action against copyright infringers could only be taken in US courts - something too expensive and time-consuming for most to consider. The National Union of Journalists is rumoured to be working on a campaign against the bill, but was unavailable for comment as BJP went to press.
The World Intellectual Property Organisation (a United Nations agency), and some European countries are considering similar legislation. Germany, Hungary and Denmark, in particular, are said to be keen to introduce new rules governing orphan works in the near future.
