Senate Orphan Works Bill Passes Committee

Having pledged to work with both the House and the Senate on orphan works legislation, PPA was disappointed that the bill approved by the Senate Judiciary Committee on May 15, 2008 left out several key provisions which would have made the legislation more palatable for photographers and other visual artists. 

By all accounts, orphan works legislation is moving swiftly through Congress and could receive a final vote in both the House and Senate this summer.  Orphan works are defined as copyright-protected material where the owner is unknown or cannot be located. 

The bill passed by the Senate Judiciary Committee (S. 2913) removes language which would have allowed creators to seek a portion of “earned proceeds” from museums, libraries and other non profit educational institutions that had otherwise met the orphan work test contained in the bill. “Proceeds” refers to revenue directly attributable to the use of an orphaned work. PPA argued that while the provision unfairly placed the burden of proof on the creator, it was still preferable to no “proceeds language” at all. The Senate bill also fails to include in it a requirement for users of orphaned works to file an intent-to-use notice with the U.S. Copyright Office.

On the other hand, we acknowledge an attempt by the writers of the bill to mitigate the situation for photographers and artists by adding a “useful articles” provision which would exempt the sale of novelty items from an orphan works defense.  The bill sent to the full Senate for a vote also includes a delayed effective date for photography and visual arts of 2013, two years later than originally presented.  Proponents of the bill are opposed to delaying the effective date for visual arts.   The orphan works bill in the House also carries an effective date of 2013. 

From the beginning, PPA has worked vigorously to effect positive change in the otherwise objectionable legislation for photographers.  We are pleased that the bills being considered today are significantly improved from two years ago.  We intend to continue working with the Senate to gain further improvements in the final bill.  Information we have gleaned from our many Capitol Hill visits indicates that there is very broad support for orphan works legislation.

We understand the concerns and positions taken by other professional photographic and visual arts organizations, which are now engaged in a very aggressive public campaign against the legislation.  While we believe that it is more effective to work with Capitol Hill to effect change, we feel the same frustrations they feel with the current situation.  Our approaches may be different, but our objectives are the same. 

Click here to review the current Senate bill.(pdf file)

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