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PPA Offers Input on Orphan Works - UPDATED - PPA Today

PPA Offers Input on Orphan Works - UPDATED

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3/17/14 UPDATE

Maria Matthews was a last-minute replacement for David Trust and spoke on Capitol Hill Monday and Tuesday. She's back with a report on what went down! And boy, it sounds like organizations on every side of the debate are as passionate as ever! Get caught up and read her latest update at the bottom!

By: Maria Matthews, manager of PPA's Copyright & Government Affairs department

On March 10-11, the debate over "orphan works" will remerge during the ongoing copyright review process. PPA's CEO David Trust is heading to Capitol Hill to make sure photographers have a seat at the table.

"Orphan works" are loosely defined as copyright-protected material where the copyright owner is unknown or cannot be located. The vast majority of these "orphans" are photographs and other works of visual arts. How the public can make use of these "orphans" has been debated on Capitol Hill for almost a decade.

The purpose of the two-day roundtable, hosted by the U.S. Copyright Office, is to gather insight on potential legislative solutions and discuss orphan works in the context of new technology and mass digitization efforts.

PPA has been involved in the orphan works debate since the Copyright Office began its initial study of the issue in 2005. Over the years we have testified before Congress, worked closely with Copyright Office officials, key Congressional Leaders and their staff to ensure that photographers concerns were incorporated into any future law. 

The closest an orphan works bill came to being enacted was in 2009 when the "Shawn Bentley Orphan Works Act" was passed by the Senate. The bill did not make it out of the House Judiciary Committee, which has jurisdiction over copyright matters, as it greatly differed from the legislative language they proposed. Since then there was little activity on this front until the issue was incorporated into the Register of Copyright's "Priorities and Special Projects" outline.

Stay tuned for an update on "orphan works" and related legislative activity following our return from Capitol Hill!

3/5/2014 UPDATE: 

We've got more details for you!

David Trust will sit on two panels at next week's Orphan Works Roundtable:

1. "The types of works subject to any orphan works legislation, including issues related specifically to photographs."

2. "Remedies and procedures regarding orphan works".

Trust will speak on behalf of professional photographers during a session on the treatment of "orphaned" photographs in any legislative language to be drafted. He will also address remedies and procedures relating to orphan works. 

Major stakeholders in the copyright review efforts who represent interests on both side of the orphan works debate will be present at the meeting. Fellow visual arts organizations and pro-copyright scholars from copyright-friendly organizations like the PLUS Coalition and university research centers will speak on behalf of creators. On the opposite side of the table are organizations that represent the interests of potential "orphan works" users, including museums, libraries and internet freedoms groups.

Due to the high demand from prospective participants, panelists were limited to two of nine possible sessions. PPA signed up for nearly all of them, but luckily wound up in two of our highest listed priorities. The Copyright Office will hold an open comment period at the conclusion of the second day to ensure all voices are heard.  

That's the latest! We'll provide a recap once we return. As always, PPA's got your back!


3/12/14 UPDATE:

There's plenty to talk about from a busy couple days on Capitol Hill! Here are some highlights:

In reframing the orphan works debate, the Copyright Office is considering giving photographs and other works of visual arts special treatment as they make their recommendations to Congress. This "special treatment" could exclude photographs from the types of works that can be considered "orphaned." This will help raise the bar for determining when a photograph is an "orphan."  

This has the potential to be great news for photographers. We appreciate the Copyright Office's recognition of the unique nature of photographs and photographers and agree that exempting photographs from orphan works legislation makes sense. This could facilitate progress toward meaningful legislation.

This new way of thinking stems from the fact that the very technologies that have helped advance the profession often separate photographers from their images. This refers specifically to when metadata and watermarks get stripped away (either intentionally or accidentally) as files are transferred, posted online or cropped for publication. 

If photographs are included in orphan works legislation, the language must be thorough and it cannot make compensation inaccessible, as we outlined in our written comments.

There has also been some progress to ensure that copyright owners whose works were designated "orphan works" are properly compensated when they come forward following its use. Early versions of orphan works bills included a great deal of protection for the would-be infringer, preventing the copyright owner from collecting any form of compensation. But there is now some movement in favor of language to protect copyright owners as well.

Many representatives from the user community have expressed interest in incorporating language that would allow copyright owners to receive reasonable compensation, set according to market value. Any legislation that does not protect the legitimate interests of the right holder by ensuring reasonable compensation for the use of their creative works denies them equal treatment as provided by law.

In fact, any quest for compensation has to be applied in conjunction with a small claims process that makes it feasible for copyright owners to assert and defend their rights.  Being able to pursue an infringement outside the federal court system will take into account the burden and expense of waging a federal lawsuit. This would ultimately prevent a photographer from collecting even the most modest amount of money.

The mass digitization of copyrighted works (like photographs) was also a major topic of discussion. Two arguments that were repeated throughout both days centered on a benefit to the "public good" and the need to "satisfy their mission." But if all creations are inherently free to use there's no incentive for creators to continue to create!

The Copyright Office concluded the sessions by inviting participants to submit parting thoughts during an open comment period. We will digest the ideas shared and provide additional feedback to ensure photographer's needs are well represented in the recommendations the Copyright Office offers to Congress.

The ultimate goal of this roundtable and any future "fact finding" sessions, roundtables, comment periods, etc. will be to issue an updated report on the state of orphaned works, including what aspects should be legislated and what aspects should be left to administrative rules making.

Of course, as the situation develops, we will keep you all posted!

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About this Entry

This page contains a single entry by Professional Photographers of America (PPA) published on February 28, 2014 7:26 PM.

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Introverts of the World, Unite! (In our minds, not in person because that would be uncomfortable) is the next entry in this blog.

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