SAA Recommendations to Congress
We urge Congress to amend this draft legislation to expand on the new ideas they have put forth which seek to minimize potential abuse, and better balance the needs of those who legitimately seek orphan works exemptions while better serving those who seek protection of their copyrights.
Specifically, we propose the following:
Regarding the Provision for Certified Private Searchable Databases:
1. Before any Orphan Works law goes into effect for visual works, there be at least two certified searchable databases in service (removing the alternative effective date of Jan 2013)
2. Best practices specified by the Copyright Office would require anyone seeking the Orphan Works exemption to search both databases should they fail to find the copyright owner in one search.
3. At least one of these databases allows copyright holders to submit works without fee or charge. (The financial support for such a system should come from the prospective users of the works, and not from the artists whose copyrights are being challenged by the effects of this legislation.)
4. All images registered with the U.S. Copyright Office through their new online registration system be automatically added to the searchable databases upon upload, and that provisions be made for the transfer of all electronic deposits made to the Copyright Office to both databases.
5. New exemptions under this statute be available only for as long as the Copyright Office can continue to certify that such searchable databases are fully functional. If this ever ceases to be the case, then new Orphan Works exemptions would no longer be available.
Regarding the "Notice of Use" Provision:
1. There be a fee for filing a "Notice of Use."
2. A copy of each work be included in the "Notice of Use" filed by an infringer.
3. A "Notice of Use" be required to have specific detail not just "how" and images is to be used (e.g. "print," but exactly "where the image will be used, including name, date and location of publication.")
4. The archive of "Notices of Use" of claimed orphan works exemptions, containing the digital copies of the work used, be available to registered copyright holders so that they can perform a visual search for infringements of their images.
Regarding the Provision for Reasonable Use Fees:
1. The exemption for payment of reasonable use fees by nonprofit educational institutions, libraries or archives be removed. These entities are well accustomed to paying usual licensing fees and ought to continue to do so, just like other infringers, if the owner of an "orphan work" presents a legitimate request.Regarding Best Practices
Regarding Best Practices:
We urge that the Copyright Office commit to work closely with photography and other visual arts professional associations, and industry leaders from across the image licensing community, to ensure that the documented "best practices" for searching for copyright owners be sufficiently stringent and comprehensive that, while allowing for legitimate searches, they prevent idle or casual searches which would abuse the system.
We also urge a public commitment by stock photography agencies, particularly members of PACA, BAPLA and other industry groups, to ensure that their entire collections at all times be searchable in Copyright Office certified databases.
SAA is part of the Imagery Alliance, an ad hoc group of Visual Artists associations concerned about the protection of copyright. The alliance provides a forum for sharing information and strategy concerning Orphan Works and other legislative issues. There's been a broad range of opinions on the current bills expressed so far, and we can expect more views aired in the days to come.
