Thursday, September 21, 2006

More On "Orphan Works"

If you've been following along, the Orphan Works amendment story has been a start-stop, hurry-up and wait affair. At each stage I've asked you to write letters and fax them to your representatives in the House & Senate, as well as the members of the House Judiciary Committee. Your participation in the effort to defeat this proposed legislation is crucial to any progress we might make in this area. If you've had your fax machine humming then I thank you on behalf of the entire creative community. If you haven't been a faxmaniac.... c'mon, get with the program.

Just when we thought this amendment might actually die in committee, it was revived as the Copyright Modernization Act of 2006. Oy!

The good news is that the CMA may well fall off the table this session as legislators tackle "more important" stuff... and then pack-up and hit the campaign trail for the mid-term elections, just six weeks away.

This morning Judy Herrmann, who sits on ASMP's national Board of Directors, reports that for the second time in 2 weeks, Rep. Lamar Smith tried to get the larger CMA, which includes an amendment addressing Orphan Works, included in the House Judiciary Committee's mark-up session. The "Copyright Modernization Act of 2006" focuses primarily on the music industry and includes the Orphan Works language from HR 5439 on pages 86-96 of the 100 page document.

The new bill had been placed on the mark up calendar for the House Judiciary Committee meeting last Wednesday and again yesterday. Fortunately for photographers and other visual artists, it was dropped from the committee's schedule in both sessions.

Vic Perlman, ASMP's in-house counsel, has added his report on the new bill to ASMP's Orphan Works web resource at

There's also a very informative article about the new bill at:

ASMP is working closely with other industry associations to delay the passage of this bill in the hope that the language can be improved. As Vic's latest report shows, significant hope lies in the fact that Chairman Smith has agreed to offer an amendment requiring the Copyright Office to develop a searchable on-line database of copyright registrations that includes digital copies of the deposit materials. This would delay the effective date of the bill until the Copyright Office has a functioning system in place. While this does not address all of ASMP's concerns about the proposed Orphan Works amendment, it represents a significant step in the right direction.

The bill may be presented again before the current session ends but with every day that passes, the hope that this session might end without this amendment passing increases. Even if we get through this session, it's almost inevitable that some kind of Orphan Works legislation will be passed in the near future. So, while Vic's fighting the good fight in Washington, ASMP is also actively seeking solutions that will help protect visual artists should this or a similar Orphan Works bill be proposed.


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