The ASMP is broadly and reluctantly in support of the OWA2008 House version of the Bill, as the best deal that can be got, according to their update at http://www.asmp.org/news/spec2008/orphan_update.php But whether or not they are correct that if this is opposed something worse will follow, the ASMP's points need critical examination:
Before using an orphan work, the infringer has to file a notice of use at the Copyright Office. The notice must include a description of the work, a summary of the search conducted, all identifying information found during the search, a certification that a good faith diligent search was made, the name of the user, and a description of the intended uses. Failure to file the notice means that the user cannot raise an orphan works defense if the copyright owner claims infringement. The Copyright Office must maintain an archive of notices of use.
This archive of notices of use at present appears to be text-only, so reliant on whatever information or description the 'user' cares to file. Were it to be searchable, this would be largely useless for photographers to identify work that has been used as orphans. But search seems unlikely to be available anyway. Probably this archive will only come into play once a court case has commenced, as proof of the orphan defence and limitation on damages.
As in the 2006 bill, all that a copyright owner can get by stepping forward is “reasonable compensation.” But now there are some teeth to this clause: If someone fails to negotiate reasonable compensation in good faith, or fails to make reasonably timely payment of the agreed-upon compensation, the ability to claim orphan works status is lost.
This sounds OK, but how fine will it work out in practice? 'Reasonable compensation' is clearly going to mean 'the $2 I normally pay a microstock agency for RF' to many infringers, and 'what I charge for my premium RM images' to many photographers. Then only a court case can resolve the matter. If the orphan search stands examination the photographer may win some or most of their claim on the amount of payment but will be left holding the bill for legal costs (the Bill is explicit about this), at many times the cost of the uplift in fee. If the orphan search is deemed inadequate and the work is unregistered, damages will be limited to pretty much what the photographer thought reasonable, with costs to be apportioned by the court. Both instances present an impossible dilemma for the photographer whose work has been used : a high-risk costly litigation to recover almost nothing. And as for photographers outside the USA, the idea of litigation is completely impractical. Either way, a completely unreasonable sum can be safely offered by the infringer, with almost no danger to themselves.
This is hopeless, fatally flawed, and cannot be accepted. There has to be some balancing of risk, so that spurious and defective orphan defences can incur punitive damages, and there has to be some way of arbitrating what constitutes 'reasonable'. Normally this arbitration is done by the rights holder and the infringer themselves, both of whom have good reason to settle amicably rather than embark on costly recourse to law. But as written, the Bill locates most of the risk with the rights owner despite them being the 'wronged' party.
Useful articles (such as coffee mugs, key chains, t-shirts, etc.) are not uses that can qualify for orphan works status.
It's interesting that this exemption was obtained by the textile and merchandising industry seeking to protect their trade. If they can press for an exemption, why cannot photographers?
The Copyright Office must certify private databases that facilitate the search for pictorial, graphic and sculptural works. The databases must contain name and contact info for author, name of the copyright owner if different, title of work, a copy of the work (for visual images) or a description “sufficient to identify the work,” mechanisms that allow search and identification by both text and image, and security measures to protect against unauthorized access or copying. The Copyright Office has to make a list of certified databases available to the public over the Internet.
Registries are clearly a very good idea that by themselves and over time will resolve the orphan issue, but the idea that certification is required points to ulterior business motives, as I describe here. An open, global system of registries to the required specification would create price competition, reducing costs to creators, and do a far more comprehensive job. There is absolutely no reason why the US should have ownership of this, it needs to be multinational and mutilateral (like so much else).
For photos and other visual works, the effective date of this law is delayed until
1. the Copyright Office has certified at least 2 databases that are available to the public, or
2. Jan. 1, 2013 (whichever comes first).
In contrast, for non-visual works the effective date is quite soon: Jan. 1, 2009.
Again, as I wrote here, it will take years or perhaps even decades before registries become populated with sufficient data to allow what the OWA2008 asserts they will be used for, providing rights owner information for potential orphans. Meanwhile and immediately their only function will be to allow a potential user to check quickly and easily that they are not about to infringe against a registered work that might incur statutory damages. In other words the registries will point up whom it's unsafe to steal from.
As in the 2006 version — but important enough to bear repeating — the Copyright Office is directed to study alternative methods of dealing with small copyright claims. It must report to Congress within 2 years of date of enactment.
This does at least show an awareness that this Act will create an avalanche of disputes so a cheap and easy court process is required. Would it not be better to try and formulate a process that discourages dispute?
The Comptroller General is directed to study the functions of the deposit requirement in copyright registration, including historical purposes of the deposit requirement, the degree to which deposits are available to the public, the feasibility of making deposits (especially visual arts) electronically searchable by the public for purposes of locating copyright owners, and the effects that any change in the deposit requirement would have on the Library of Congress’ collection. The report is due within 2 years after enactment.
Reading between the lines of this, there's a hint that the Copyright Office registration process is antquated and incapable of modification to fulfil the requirements of the internet age. It's a cost overhead too, and quite likely the study will look at the viability of delegating some or all all registration to the proposed privatised registriies. That raises questions of whether the new registries will enable statutory damages, or whether there will be a separation, for example limiting statutory damages to CO registered works that would have to meet restrictive criteria such as corporate ownership or a value threshold. I'm guessing, but the existing CO mechanisms are clearly past their best-by date.
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.
Realistically, if the House bill is 'about as good as photographers are ever going to get', most of us had better find day jobs. It doesn't take much imagination to see that the major risk to professional photographers is not that their work will be orphaned wholesale and used cheaply (although I expect it will be), but that the Bill will enable crowdsourced material to be used with complete impunity. Most amateurs do not know or care about metadata or copyright, they won't argue over reasonable fees of a couple of dollars, and this Bill is a key to unlock a fantastic, free resource. The net is awash with metadata-less images filed under hard-to-trace pseudonyms on systems like Flickr, and these will be ripe for the picking, packaging and selling. Professionals will have to compete against this proposition as well as bear the costs and labour of registering their own work. With that in mind, OWA2008 is another large click of the ratchet toward the extinction of photography as a professional activity. I hope ASMP have thought this through.
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.