Senators Orrin Hatch and Patrick Leahy, nursing their wounds from the derailment of patent reform legislation this year, are still hoping to make their mark on IP law in this session of Congress. Bipartisan copyright legislation addressing orphan works was on a fast track this spring, emerging from the Senate Judiciary Committee in mid-May with unanimous consent, and appeared to be heading straight for the floor of the full Senate in June.
But then came speed bumps. Professor Lawrence Lessig of Stanford Law School, an icon of the free culture and copyright reform movements, wrote a damning op-ed piece about the legislation in The New York Times. Lessig's criticisms exposed a rift among allies. The legislation proposed by Hatch and Leahy is strongly supported by the Electronic Frontier Foundation, where Lessig served as a director until recently, and was developed in consultation with Public Knowledge, a nonprofit that works to defend citizens' digital rights. (PK's founder, Gigi Sohn, is a friend of Lessig and was honored by EFF in 2006.)
At the same time, professional groups representing artists and designers started an impressive grassroots effort to voice their concerns. Since mid-May, representatives from Orphan Works Opposition Headquarters, Advertising Photographers of America, Illustrators Partnership, Association of American Editorial Cartoonists, and the Artists Rights Society have stormed Capitol Hill, and have spurred into action individual photographers, illustrators, cartoonists, and textile designers. Members of Congress have received more than 85,000 e-mails and calls from angry artists raising fierce objections to the bills. By contrast, the Motion Picture Association of America, the American Publishing Association and the American Society of Media Photographers support the bills.
The problem that the bills are aimed to solve was described to the subcommittee on Courts, the Internet and Intellectual Property of the House Committee on the Judiciary earlier this year by Marybeth Peters, the register of copyrights at the U.S. Copyright Office. "When a copyright owner cannot be identified or is unlocatable, potential users abandon important productive projects," Peters testified. "Publishers cannot recirculate works . . . museums are stymied in their creation of exhibitions, books, Web sites, and other educational programs." An orphan work can be an illustration, song, software, video game, letter, cartoon, painting, photograph, textile design, book, or other original work, either old or newly created, whose creator and/or owner cannot be identified or located. These works tend to remain unseen, because potential users or licensees fear legal retribution should creators/owners surface. Several previous attempts, most recently in 2006, have tried to address the issue via new copyright law.
In this year's bills, users would be given a safe harbor if they prove that they have made a so-called good-faith, diligent effort to identify and find the creator/owner. "The Orphan Works Act does not dramatically restructure copyright law-it simply provides for a limitation on damages in limited circumstances in which, among other things, the owner is not locatable after a diligent search," according to Senators Leahy and Hatch. (The House version is sponsored by Representative Howard Berman.)
But this standard of a diligent search doesn't please Lessig at all. "The uncertain standard . . . doesn't offer any efficient opportunity for libraries or archives to make older works available, because the cost of a 'diligent effort' is not going to be cheap," Lessig wrote. "The only beneficiaries would be the new class of 'diligent effort' searchers."
Artists, for their part, believe "these bills reflect the anticopyright movement," says Theodore Feder, president of the Artists Rights Society, which represents the rights interests of over 30,000 visual artists and estates of visual artists. Removing the threat of statutory damages will be a green light to infringers, he says. "The worst that happens for the user is pay [fair compensation] now or pay later," Feder says. Alex Curtis, policy director at Public Knowledge, notes that artists can still sue for damages, but if the user can prove a diligent search, the award of damages will be much more unlikely. Feder says that very few artists have the money to go to court.
Recognizing the financial burden for small businesses and individual artists of suing alleged infringers, each of the bills calls for a "Study on Remedies for Small Copyright Claims." If the legislation passes and this section is retained, within two years of enactment the Copyright Office would have to submit a report on the subject to the House and Senate Judiciary committees. But this won't pay artists' rent or gas bills-it would just be a study.
Copyright lawyers say the legislation could force artists/owners to strike fair compensation settlements out of court. But it could also drive new needs to track and protect creative works, and will certainly spur new technology. Before the legislation can be implemented, the bills call for the establishment of at least two separate independent databases certified by the Copyright Office that allow for searches of copyrighted works, including visual works. The effective date of legislation could be January 1, 2009, but it could take up to January 2013 to establish these databases. Surely there will be more speed bumps ahead.
