February 16, 2018

Senate Passes Orphan Works Bill; ‘PRO IP’; Bill Headed to President’s Desk

  • Senate passes orphan works by unanimous consent
  • House passage in question
  • In separate action, draconian enforcement bill set to become law

As Congress headed into overtime last weekend to consider a bill meant to address the troubled financial markets, two major copyright bills passed in the Senate, including one that addresses orphan works, a measure long fought for and supported by libraries. The Shawn Bentley Orphan Works Bill of 2008 passed late on September 26 by unanimous consent, a Senate rule that allows for expediting legislation by bypassing a floor vote as long as no Senator objects.

Despite Senate passage, however, the fate of the orphan works bill remained unclear at press time. Congress was set to adjourn after passing the $700 billion Wall Street bailout on Monday, but with the bailout failing to pass, lawmakers resolved to stay in Washington for another try, and that has given orphan works advocates some extra time to make their case.

PRO IP to President?

On Saturday, September 26, meanwhile, the Senate passed a controversial copyright enforcement bill, strongly opposed by the library and the tech communities. The bill, S. 3325, the Enforcement of Intellectual Property Rights Act of 2008, was passed after it was stripped of a controversial provision that would have given the Department of Justice (DoJ) a mandate to pursue civil copyright actions, and to collect and distribute damage awards to private entities. The DoJ had strongly opposed that provision, as well as a provision (which remained in the final bill) to create a presidential appointee to oversee copyright enforcement.

The removal of the provision directing DoJ to pursue civil copyright cases aligned the Senate bill closely with the House version, known as the PRO IP Act, which initially passed in May of 2008. The bill, which greatly expands damage awards and enforcement powers, is now headed for the President’s desk, where, it is expected to be signed.

Public Knowledge’s Gigi Sohn, a close ally with the library community in fighting against the legislation, said the bill did nothing to benefit enforcement, but merely adds “more imbalance” to copyright law. “At a time when the entire digital world is going to less restrictive distribution models, and when the courts are aghast at the outlandish damages being inflicted on consumers in copyright cases,” she said in a statement, “this bill goes entirely in the wrong direction.”


While still alive, there remain significant differences between the House and Senate on orphan works, however, and House leaders are said to be cool to the Senate legislation. An orphan works bill introduced in the House this spring was strongly opposed by the library community, primarily for its “dark archive” provision, which would mandate the creation of a Notice of Use Archive (dark archive), to be held and maintained by an outside private party, but certified by the copyright office. Under the House plan, potential users of an orphan work would be required search this database, and document the search, before making use of the work. That would place an undue burden on users, some argue, as well as on copyright owners, who would have to populate the database—and likely pay fees to do so.

With Congress now remaining in Washington through the week, the effort to get the Senate bill through the House has ramped up. If the bill is not passed, lawmakers will have to start again in the next Congress. On the other side, opponents of the orphan works bill, mainly artists and photographers, have mobilized an all-out campaign to sink the bill, with statements this week bordering on hysteria. A statement by the Advertising Photographers of America (APA) claimed the bill “encourages wide-scale infringements while depriving creators of protections.” And in a blog post, Ted Rall, president of the Association of American Editorial Cartoonists, claimed that “unscrupulous members of the U.S. Senate” took advantage of the nation’s financial crisis “in order to pass controversial legislation that threatens the livelihoods of everyone who relies on copyright for a living.”

If passed, the bill would reduce liability for those who make use of copyrighted works provided they make, and document, a reasonably diligent effort to find the owner. Libraries want the bill because it could enable large-scale digitization efforts. Publishers, meanwhile, have also embraced the bill. Association of American Publishers VP for legal and government affairs Allan Adler said enactment of the bill in this Congress would be an “extremely important” accomplishment. “But, even if the House does not act, Senate passage is a significant step,” Adler said, at the very least “establishing a benchmark for continuing efforts to enact meaningful ‘orphan works’ legislation early in the new Congress.”