As 109th Congress Nears Close Is Orphan Works Bill Unlikely?

Andrew Albanese -- Library Journal, 9/25/2008 1:05:00 PM

• A priority for Congress?
• Competing interests cause delay
• Flurry of activity this week

In its final month, the 109^th Congress has moved on two copyright bills that place libraries and publishers at odds, but it is also working on a third bill, on which librarians and publishers actually share some common ground: the Shawn Bentley Orphan Works Act. Even though orphan works legislation was believed to be a priority for this Congress, however, the bill now appears to be a longshot for 2008, leaving only a draconian enforcement bill (PRO IP), heavily opposed by the library and tech communities, with a chance of passing in this Congress.

Association of Research Libraries (ARL) associate executive director Prue Adler told the LJ Academic Newswire this week that there has been a flurry of activity as this session winds down trying to find language that works effectively for users and owners of orphan/coprighted works, but added she couldn’t predict where the bill would end up. If it does not pass before Congress adjourns, proponents will have to start again in the next Congress.

Competing bills, interests

Orphan works are works that are assumed to still be copyrighted but whose owners cannot be located, including a great number of works in library collections. After years of discussion and effort from librarians on the issue, Congress has proposed legislation that would subject users only to normal license fees and exempt them from statutory or punitive damages should a copyright holder in an orphan work later emerge as long as the user has conducted “a reasonably diligent” search. As with all things copyright, however, the Shawn Bentley Orphan Works Act of 2008 faces a number of issues.

First, the House and Senate bills addressing orphan works are radically different. Libraries, publishers, and while librarians public advocacy groups like Public Knowledge have embraced the Senate version, and strongly oppose the House version. Artists and photographers on the other hand, hate both bills—but prefer the House version. The American Society of Media Photographers (ASMP) urged its members to oppose the Senate bill, but acknowledged that telling Congress to reject any bill would be a mistake. “No matter what we do, orphan works legislation will eventually pass,” an ASMP statement noted. “If we manage to stop the current House bill, future legislation will inevitably be worse for us.”

Better than nothing? 

One of the few things unifying the two sides in the orphan works debate, meanwhile, is dissatisfaction. The bill has gained some notable opponents, such as Stanford law professor Lawrence Lessig. And in the academic library world, there has been what is best characterized as unenthusiastic support. Duke University scholarly communication officer Kevin Smith, for example, suggested the bill would be limited in its effectiveness. On the other hand, artists and illustrators have been adamant in their opposition, calling the bill a license to steal, and generating over 30,000 letters to Congress.

Supporters, however, insist an orphan works bill would be positive. “Librarians should get behind this legislation because it will permit them to use many historical and culturally significant works,” Public Knowledge’s Gigi Sohn stressed. “The bill will not be perfect, I can assure you. But if passed, it will be the first significant reform of copyright laws in over 30 years, and that should not be overlooked.”