SAA have now posted an interesting follow-up extracted from Selling Stock, which presents contrasting legal opinions of the Orphan Works Act 2008. The more critical of the two attorneys mirrors the concerns expressed here at Copyright Action, among other places. The other forsees fewer problems, but both agree that the cost of litigation is a major issue and is likely to constrain photographers abilities to pursue infringements claiming orphan status. If this is true for US photographers, then it certainly leaves photographers outside the USA defenceless and unable to protect their work from orphan claims, whether well-founded or not. Litigation within the USA has always been unthinkable except where registered works are concerned, but the US IP culture has been relatively well-behaved thanks to the fear of infringing against registered works. That seems likely to change if this Bill becomes law.

According to Nancy Wolff, the legal counsel of the Picture Archive Council of America and the PLUS Coalition, the congressional version of the Orphan Works Bill of 2008 is an improvement. Wolff specializes in intellectual-property and digital-media law as a partner at New York-based law firm Cowan, DeBaets, Abrahams & Sheppard and says legislators listened and dealt with issues raised by various affected groups.
By contrast, Atlanta attorney Carolyn Wright and author of Photographer's Legal Guide thinks both the House and Senate versions of the bill pose an extreme threat to copyright owners. "While the House version is not as bad as the Senate's, and both are an improvement over the 2006 bill, we still should work to oppose both of them-or at least attempt to make significant revisions," said Wright, a lawyer with big-firm litigation experience, a professional photographer and the woman behind the popular PhotoAttorney blog.

More at Orphan Works Bill: Legal Opinions Vary

It is perhaps mildly coincidental that Woolf, the more positive of the two, is attorney for the Plus! coalition, probably the leading candidate supplier of a certified commercial registry. 

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Some comments and reflections on the SAA's recommendations:

SAA Recommendations to Congress
We urge Congress to amend this draft legislation to expand on the new ideas they have put forth which seek to minimize potential abuse, and better balance the needs of those who legitimately seek orphan works exemptions while better serving those who seek protection of their copyrights.
Specifically, we propose the following:
regarding the Provision for Certified Private Searchable Databases:

1. Before any Orphan Works law goes into effect for visual works, there be at least two certified searchable databases in service (removing the alternative effective date of Jan 2013)

It will presumably take many years before the registries are populated by the many millions of photographs whose rights owners want clarity about non-orphan status. Until then, they are not going to reliably indicate anything except which images it is unsafe to infringe against because they may incur very expensive statutory damages.

It is hard to see how the new visual registries can be pre-loaded with the existing Copyright Office registry data since one of the complaints about that is that the rights owners of many registered works cannot be traced because they have failed to update their contact information. This rules out data migration since every CO record that is to be migrated will require verification that it's not orphaned else the new registries will immediately be poisoned with orphans and unfit for purpose.

So whether it's 2013 or as soon as certified registries are available, until records exist for every photo from the last 70 years which the rights owners wish to protect, photos are liable to be used as orphans whether they are or not.

This dichotomy between what the Bill proposes and what is practicable is why the whole scheme looks like a recipe for infringement with impunity.

2. Best practices specified by the Copyright Office would require anyone seeking the Orphan Works exemption to search both databases should they fail to find the copyright owner in one search.

If as I expect the databases (CO certified registries) will use the Digital Object Identifier handle system, it doesn't matter whether there are one or one-hundred-and-one, since they operate in a delegated fashion rather like the DNS system. There has been a DOI visual works registry in operation since at least 2004 to my knowledge, mEDRA.org in Italy.

In fact it would be surprising if any other system were to be proposed than that pioneered by the DOI Federation, since it is a mature and widely used system that is already understood by some modern web browsers. It also probably (unconfirmed) forms the basis of the Plus! initiative's not-yet-live registry. Plus! - and it's major sponsor Adobe - would therefore likely be well placed to obtain certification. Whether photographers would accept Adobe directly or indirectly having an even firmer grip on our livelihoods will remain to be seen, especially after the debacle surrounding pricing of Adobe products outside the USA.

More disturbingly the requirement for certification by the Copyright Office will construct a US oligarchy that will restrain competitive pricing. The DOI system imposes a cost of 'a few cents' per registration. It will be interesting to see what commercial interest does with that figure.

If there is to be a registry system, then why not implement a global DOI system with no requirement for certification? Within the DOI model, consistency is supplied and enforced by the system itself for any given content type. Any registry for photos would need to comply in order to work, whether in USA, Korea or Kazakhstan, which would lead to competitive pricing. Certification is superfluous except as a market restriction to assist profitable monopoly, which means creators will pay more.

3. At least one of these databases allows copyright holders to submit works without fee or charge. (The financial support for such a system should come from the prospective users of the works, and not from the artists whose copyrights are being challenged by the effects of this legislation.)

Nice idea, but since the requirement for certified privatised commercial registries arose because Congress didn't want the financial burden of enhancing the existing CO registry. They don't seem more likely to subsidise a private registry. And who would use the pay-for ones, if one was free?

4. All images registered with the U.S. Copyright Office through their new online registration system be automatically added to the searchable databases upon upload, and that provisions be made for the transfer of all electronic deposits made to the Copyright Office to both databases.

It seems completely opaque so far what the relationship between the CO registry and the privatised registries will be, whether they will be equivalent and interchangeable,or whether they will fulfil different functions and require parallel registrations. Given the technical dissimilarities, I'd bet on separate registrations being required. The privatised registries I would expect to operate entirely online, with every photo and its associated metadata having to be uploaded.

5. New exemptions under this statute be available only for as long as the Copyright Office can continue to certify that such searchable databases are fully functional. If this ever ceases to be the case, then new Orphan Works exemptions would no longer be available.

An interesting point this. The internet is not a 100% reliable mechanism, and (as with DNS) there are transient situations when the registries may fail. Then what?

Regarding the "Notice of Use" Provision:1.
There be a fee for filing a "Notice of Use."

There is already opposition to the idea that intending users might have to pay a fee, expressed at the (pro-Bill) Publicknowledge blog. "Yes, users will be documenting their search, but to require an extra formal filing to a repository will be costly, perhaps more expensive than reasonable compensation if the user were able to negotiate with the owner."

Basically, the proponents of orphan rights seem not to want to pay anything to anybody.

2. A copy of each work be included in the "Notice of Use" filed by an infringer.

All indications so far are that the CO Notice of Use Archive will not include images, only whatever text description the user decides is appropriate. Furthermore that the NUA archive will probably not be searchable, but will only be utilised for evidential reasons once a case has gone before the court.

3. A "Notice of Use" be required to have specific detail not just "how" and images is to be used (e.g. "print," but exactly "where the image will be used, including name, date and location of publication.")

And what of libraries such as Corbis & Getty, who have amongst their acquired collections very large numbers of orphans they will want to market?

4. The archive of "Notices of Use" of claimed orphan works exemptions, containing the digital copies of the work used, be available to registered copyright holders so that they can perform a visual search for infringements of their images.

Desirable, certainly, but it's hard to see how this could be technically or financially feasible, given the literal millions of photographers worldwide who would want to use it for detecting usage of their work.

Regarding the Provision for Reasonable Use Fees:
1. The exemption for payment of reasonable use fees by nonprofit educational institutions, libraries or archives be removed. These entities are well accustomed to paying usual licensing fees and ought to continue to do so, just like other infringers, if the owner of an "orphan work" presents a legitimate request.

I understood virtually all educatonal use was 'fair use' under US Copyright Law. Certainly I know of UK photographers who have objected to usage by US universities and schools and been told they will neither cease using nor pay for images used without permission as 'fair use' applies. There is no such fair dealing exception in UK law, but US educational establishments have no moral or legal dilemma in filching UK content.

I guess the situation is different from SAA's position, where the image can only be obtained by payment. Which will make orphans a particularly attractive prospect for would-be fair-use users.

Regarding Best Practices:
We urge that the Copyright Office commit to work closely with photography and other visual arts professional associations, and industry leaders from across the image licensing community, to ensure that the documented "best practices" for searching for copyright owners be sufficiently stringent and comprehensive that, while allowing for legitimate searches, they prevent idle or casual searches which would abuse the system.

I would like to think there is some basis for the SAA's deferential and constructive approach, but as far as I can see, the Bill is only designed to look as if it deals with orphan works in an even handed manner. There are no checks on the honesty of the infringer unless and until a disputed case goes before a court, and no penalties for deficient or fraudulent claims of orphan rights. The worst that can happen if orphan status of an unregistered work is disallowed, is that the damages paid will be approximately the revenue lost, plus legal costs. But the quality of the search will never be tested because infringements where unregistered photos are concerned will generally be a few hundred dollars at most. No photographer is going to risk a legal bill of many times that in order to win that sort of amount.

The smoking gun that this Bill is a subterfuge is this lack of penalty even if the infringer lies through his teeth. One way to counterbalance this would be to allow statutory damages where a search has been shown to be defective or dishonest. Unless something like that is introduced, this Bill places rights owners on the back foot and encourages foul play.

But fundamentally even that is a bad idea, since it will serve only to enrich lawyers. What is so wrong with the present position that anyone wanting to use work has to take the responsibility for clearing the rights? And give a fair use exception for conservation or non-commercial, archival or educational usage? Only that doing so does not unlock supposed orphans for profitable exploitation. Well tough. Nobody owes us or them a living, and I strongly suggest that imposing this whole horrible mess along with its associated costs and work for creators, is more than we can accede to.

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