The Copyright Office has suggested legislation that, in its current form, could have a devastating impact on the professional photographers. The proposal would limit, or in some cases eliminate, the damages available against an infringer of an orphan work. An orphan work is a work presumed to have copyright protection, but whose owner cannot be located even after a reasonably diligent search conducted in good faith.
Professional Photographers of America notes that while it does not oppose the creation of a narrow orphan works exception, the Copyright Office proposal goes too far by making it impossible for a copyright owner who later discovers the use of an orphan work to recover even a reasonable royalty. For the last three weeks, PPA has been actively lobbying Congress to make sure that any orphan works legislation that is introduced differs significantly from the original proposal.
“While
well-intentioned, the Copyright Office’s proposal would strip thousands
of photographers and other visual artists of their rights,” says PPA
CEO David Trust. “Unless major modifications are made, legislation
based on this proposal would disastrous.”
Of particular concern is
a portion of the proposed statute that would deny any monetary relief
to the owner of an orphan work if the infringer’s use was not for
commercial advantage and they stopped the infringement when notified by
the rightful owner. According to PPA, the statute fails to consider
that for the vast majority of professional photographers,
non-commercial personal use copying would obliterate the entire market
for their work. In addition, most photography infringements have long
been completed by the time they are discovered, so requiring that an
infringer cease the infringement is, at best, meaningless. The
provision also creates a situation where a copyright owner proves
infringement and “wins” his lawsuit but is left with no award of
damages, legal fees or costs.
The other troubling section of the proposal concerns damages for
commercial uses of orphan works. Under the proposal, the maximum
monetary award in these cases is a “reasonable royalty” for the use;
attorney fees, costs and statutory damages are all unavailable.
“While
the award of a reasonable royalty sounds good in theory, the reality is
that when you are paying hundreds of dollars an hour in legal fees, the
damages proposed in this statute are worthless,” adds Trust. “Under the
current proposal an orphan works infringement would not generate enough
in damages to make a suit economically viable or even to make the
threat of such a lawsuit credible.”
Despite the problems with the proposal, Professional Photographers of America has not yet mobilized its 15,000 members to action. Instead, PPA will make a direct appeal to the members of the House Intellectual Property Subcommittee on March 8 when it testifies at a hearing on this issue.
“If Congress introduces legislation that follows the Copyright
Office proposal as written, then we will mobilize our members to
immediate action,” notes Trust.
# # #
For additional background information on orphan works: http://www.copyright.gov/orphan/
PPA Analysis of the Copyright Office Proposal: http://www.ppa.com/files/public/PPACommentsCO-OWFinalReport.pdf
PPA Alert to its Members: http://www.ppa.com/i4a/pages/index.cfm?pageid=543
Technical
questions regarding the legislation should be addressed to Stephen
Morris in PPA’s Copyright and Government Affairs Department. He can be
reached at 404-522-8600, ext. 253 or by e-mail at smorris@ppa.com.
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