Advocacy
Copyright Reform Legislation Update
The process of copyright clearance for art scholars and teachers, publishers, and artists remains burdensome but moved one step closer to improving in 2006 with the development of a proposed revision to the US Copyright Act, in the form of legislation to address the problem of so-called orphan works. These are works--texts, artworks, music, photographs, and the like--whose copyright has not yet expired but whose copyright owner cannot be found. For CAA members, some of the most common types of orphan work are images that scholars need to reproduce in articles and books, such as old photos from out-of-print magazines and anonymous artworks whose creators were never known (e.g., street graffiti). Whether you are an art historian trying to clear permissions for pictures for a journal article or a performance artist wishing to embed some bits of old scrap film footage in a video, you have probably faced the unnerving question of whether to risk using these images even though you have been unable to locate the creator or his or her heirs--or even to identify who that creator is.Recognizing that the extension of the term of copyright from fifty years after the creator's death to seventy years has exacerbated this problem and created vast new numbers of orphans, the US Copyright Office worked with members of Congress in 2006 to develop legislation to address it. A wide range of stakeholders was consulted, including many CAA members, our Board of Directors, a consortium of museums and research libraries, artists' agencies, and others. CAA, whose members are nearly all both holders and users of copyrights, was able to be an effective voice in the crafting of the legislation.
In May 2006, a bill was introduced in the House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property: HR 5439. The bill defined what constitutes an orphan work and limits the risk to any user of such a work, provided he or she made a reasonable, good-faith effort to find the rights holder and secure permission. The language of the bill protected active copyrights from being infringed by fake or lip-service "reasonable-efforts searches." On the other hand, the bill protected legitimate users of such works from after-the-fact penalties if a rights holder should appear after the work was used. Despite some debates about details of the proposal, it had widespread support among many stakeholders who rarely find common ground: publishers, museums, artists, authors, rights agencies, and others.
CAA believes that the basic terms set forth in HR 5439 are sensible ones and therefore supported the initial bill strongly. Late in the 109th Congress, the bill was merged with some other legislative proposals into the Copyright Modernization Act of 2006 (HR 6052). That bill contained unrelated controversial legislation and did not leave the Judiciary Committee before the session ended.
To write good legislation takes time; to get a bill through Congress takes longer. CAA and our partners are optimistic that new legislation will be proposed this spring or summer and hopeful that it will be substantially similar to HR 5439. However, any legislation that seeks to curb the expansion of copyright control is likely to be opposed by large commercial interests.
CAA strives to represent all our members and to take balanced positions in our advocacy work that we believe will serve your interests. Although the great majority of our members support this legislative initiative, we have heard from a few who do not. There is some concern that an orphan-works exception to copyright protection (parallel in some ways to the fair-use exception) might make it easier for infringers to shield themselves from justified lawsuits by injured rights holders. CAA strongly supports the right of artists and authors to assert and protect their copyrights; we do not believe that the proposed legislation will put rights holders at risk or protect bad-faith, fake searches for copyright holders.
Beginning this summer, CAA will post expanded information on "Intellectual Property and the Arts" on our website, including further information about proposed orphan-works legislation. If a new bill is introduced in this congressional session, and if it is well crafted, we will contact CAA members by e-mail to ask you to assist us in urging key members of the Senate and House of Representatives to support it.
--Eve Sinaiko, CAA director of publications