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Tuesday, November 25, 2008

Orphan Works Explored

How will changes in copyright law affect you and your rights over your photography?

Band-Aids® And Bubble Gum…
Perhaps the greatest problem with the proposed legislation is that it seeks to use stopgap measures—what might best be described as Band-Aids® and bubble gum—to repair a larger and more fundamental problem with the current copyright system. Since the problem stems, in large part, from the shift from an opt-in to an opt-out system, creating a new limitation that may or may not be applicable, depending upon the circumstances, is hardly a long-term fix.

In an op-ed piece published in The New York Times, Stanford law professor Lawrence Lessig suggested an alternative solution. Instead of further complicating the copyright system, Professor Lessig suggests revising the current system to make copyright protection automatic for a period of 14 years. If, after 14 years, the copyright owner wants to continue receiving full protection, the owner will have to register the work with an “approved, privately managed and competitive registry.”

While intriguing—and it may be merely coincidental, but the first U.S. Copyright Act granted a term of 14 years that could be renewed for a second 14-year term—Professor Lessig’s approach isn’t without flaws. First, such a change would create more of a rift between U.S. and international copyright laws than currently exists. Second, the approach ignores the historical basis for the entire copyright system and the fundamental bargain struck between the copyright owner, the government and the public. In order to better understand the nature of this bargain, a brief history is necessary.

Perhaps the greatest single change that the orphan works legislation would make to the current Copyright Act is to curtail the damages that may be awarded for infringement.

A (Very) Brief Lesson In History Or “Once Upon A Time…”
As Senators Leahy and Hatch acknowledged when they requested that the Copyright Office undertake a review of the orphan works problem, they were concerned that the current Copyright Act might be depriving the public of access to orphan works. The root of the public’s interest in copyrighted works may be found in the very origins of the congressional power that authorizes Congress to enact copyright laws.

When John Adams wrote the Massachusetts Constitution in 1779, he included a rather unique provision entitled “[t]he Encouragement of Literature, etc.” Recognizing the importance of education, science and the arts as “being necessary for the preservation of...rights and liberties,” Adams empowered Massachusetts’ state government to promote these interests—the public’s interests—through, inter alia, the granting of rewards. Adams would later admit that the entire provision was the result of a burst of inspiration and was surprised that it was approved unanimously and without amendment.

Although Adams wouldn’t have a direct hand in writing the United States Constitution, he undoubtedly had a profound influence on it. Many of the ideals embodied in the Massachusetts Constitution, including the emphasis on promoting science and the arts, were ultimately incorporated into the United States Constitution. It’s for this reason that Congress has the power “to promote the progress of science and useful arts, by securing for a limited time to authors and inventors the exclusive right to their respective writings and discoveries.” Newly empowered, Congress wasted no time in passing the nation’s first copyright law, the Copyright Act of 1790.

The Quid Pro Quo
It has long been recognized that the incentive to those who created copyrightable works—the exclusive rights—are intended to benefit the public by making copyrighted works available to the public after the exclusive rights expire. As Chief Justice Charles E. Hughes, Sr., wrote in the U.S. Supreme Court’s 1932 decision of Fox Film Corp. v. Doyal, “[t]he sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public of the products of [the copyright owner’s] creative genius.” Chief Justice Hughes’ rationale was consistent with the legislative history of the then-current Copyright Act of 1909. Indeed, when Congress considered the Copyright Act of 1909—the last major enactment prior to the Copyright Act of 1976—it recognized that exclusive rights confer “a benefit upon the public that outweighs the evils of the temporary monopoly.”

It’s public interest that mandates the deposit of a copy of the work when a copyright owner registers a copyright. The deposit copy ensures that the public will ultimately have access to the material registered.

With these principles in mind, the problem with the system Professor Lessig proposes—and even with the current opt-out system—becomes apparent. A system where a copyright owner enjoys the benefit of the bargain—the exclusive rights—without ensuring that the work is made available to the public, ultimately ignores the fundamental public interests for which the copyright laws were created.

Considering the proposed orphan works legislation against this background, the legislation appears to be an attempt by Congress to treat a symptom without addressing the underlying problem. While the legislation, if passed, may provide a limited or temporary solution, the legislation doesn’t address the larger issue of ensuring that the public interest is protected.

Photographers’ Organizations Speak Out

Although voiced for different reasons, a number of the organizations representing photographers have released public statements regarding the proposed orphan works legislation, by and large, voicing their disapproval for the proposed changes.

In May, National Press Photog-raphers Association (NPPA) President Tony Overman wrote the chairman of the House Committee on the Judiciary, advising that “[w]e cannot in good conscience support this bill.” Overman also urged NPPA members to write their representatives.

A release from the Advertising Photographers of America (APA) offers insight into why it is opposing the proposed legislation. According to APA, the proposed legislation “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. 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 depending on, creators.”

According to various organizations’ websites, the viewpoints expressed by NPPA and APA have been joined by others, including the Editorial Photographers and Stock Artists Alliance.

Taking a similar, but perhaps more guarded approach, in May, the American Society of Media Photographers (ASMP) publicly announced that the “Senate version of the Orphan Works legislation does not provide even the minimum protections that ASMP considers necessary for photographers,” and urged its members to contact their senators. However, ASMP issued an updated statement in mid-July, indicating that it was still working with lawmakers in an effort to bring about changes to the House version of the legislation. As with ASMP’s earlier statement, the organization continued to encourage its membership to contact their senators and to voice their disapproval for the pending legislation.

More Changes On The Horizon?
It’s perhaps still too early to draw any conclusions regarding the proposed legislation. As indicated by the ASMP’s releases, the legislation in the House is still under revision. Thus, there’s no way to know what the final legislation will look like, much less assess the impact it may have on photographers.

While there’s work left to be done on the legislation, the significant public interests implicated by the orphan works issue make it highly unlikely that it will be left unresolved indefinitely. Photographers should closely monitor the progress of the legislation, as whatever is ultimately passed into law will have an impact on the way in which copyrights are enforced.

The Shawn Bentley Orphan Works Act of 2008

On September 26, 2008, the Senate passed the Shawn Bentley Orphan Works Act of 2008 (S.2913) by unanimous vote. The legislation now has been sent to the House, where representatives will determine whether to accept the bill as-is or to attempt to reconcile the differences between the Senate and House versions.

A significant difference between the Senate and House versions is the inclusion of a registration requirement in the House version. This would require anyone seeking to avoid liability for copyright infringement to file a Notice of Use with the Copyright Office prior to using an orphan work. The passage of the Senate bill without this requirement doesn’t bode well for its inclusion in the final orphan works legislation.

According to information that the American Society of Media Photographers (ASMP) received from House of Representatives staff members, “Members of the House of Representatives are being bombarded with messages from people in the library community urging them to adopt the language of the Senate orphan works bill.”

ASMP now has publicly called for its members to focus their efforts on communicating with their Representatives immediately as “tomorrow may, literally, be too late.”

With the passage of the Senate bill, the orphan works legislation has taken a major step toward becoming law. Despite the protests of various organizations representing photographers, the legislation could very well become law by the time you read this.

Samuel Lewis is a Board-Certified Intellectual Property law specialist and partner at Feldman Gale, P.A., in Miami, and a professional photographer who has covered sporting events for a quarter century. He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .


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