October 1, 2008

Professional Photographers of America (PPA) members and other copyright holders lost some ground this week as the U.S. Senate passed S. 2913, The Shawn Bentley Orphan Works Act, by unanimous consent on Friday (September 26). The vote was in overwhelming support of proposed orphan works legislation, and it moves the issue one step closer to becoming law. “Unanimous consent” means that no Senator objected to passage of the bill. It does not, however, mean that the bill has become law yet. 
 
Orphan works—loosely defined as copyright-protected works like photographs where the copyright owner cannot be readily identified or located—have been debated for several years in Congress. There is strong support for orphan works legislation in Congress (note the unanimous approval in the Senate), within the greater copyright community, and the voting public. From the beginning, PPA has worked vigorously to shape positive changes in the otherwise objectionable legislation for photographers.
 
“Orphan works legislation is not something that any photographer wants. PPA has been working very hard to make sure that if and when it does pass, it will be the most palatable legislation possible,” stated PPA CEO David Trust.
 
PPA always wants you to have factually correct, objective information. That is especially true with the emotionally super-charged issue of orphan works.

In recent days, some groups representing creators have issued statements accusing the Senate of misdirection—sneaking the bill through, under the smoke screen of the highly volatile financial bailout discussion taking place on Capitol Hill. In truth, the orphan works legislation was placed on the Senate calendar on May 15, 2008, where it remained in the queue until Friday.

It is our objective to represent PPA members in the most productive and professional way possible. We believe false accusations, conspiracy theories, and misdirection are ultimately unproductive and cause photographers to lose their voices on Capitol Hill. PPA will not allow that to happen. 
 
For orphan works legislation to pass this Congress, the same version of the bill will have to be approved by the U.S. House of Representatives and the Senate. Currently, there are significant differences in the House and Senate versions of the bill. If a different version clears the House, both bills must be reconciled by a “conference committee” composed of Senate and House members. If orphan works legislation is not approved—and many observers do not think it will make it through the House this year—the process begins again in a new Congress next year.

Since the bill’s passage, we have been in close contact with staff on the House Committee on the Judiciary and the Committee’s Subcommittee on the Courts, the Internet, and Intellectual Property. We know, at this point, that the House Judiciary Committee has not accepted the Senate version of the bill, but is working with the Senate to move the legislation forward. We will keep you updated on any developments. 

We anticipate that Congress will recess this week until after the presidential election. Rest assured, PPA will continue watching to see if orphan works is taken up when Congress returns in November. Unfortunately, with the broad support that orphan works is receiving both in and out of Congress, we do not expect this issue to disappear. 
 
You can view a copy of The Shawn Bentley Orphan Works Act as passed by the Senate at: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s2913rfh.txt.pdf.
 
For more information about orphan works, please review our statements in the Copyright & Advocacy section of www.ppa.com (choose the Advocacy page).