Web firms quietly win copyright victory in Congress
SAN FRANCISCO (MarketWatch) — As the media turned its attention last weekend to battles on Capitol Hill over the fate of the proposed Wall Street bailout bill, Internet companies including Google Inc. and Microsoft Corp. quietly walked away with a legislative victory that could facilitate their use of copyrighted material.
The Senate on Friday passed the Orphan Works Act of 2008, legislation that weakens copyright protection for works whose owners cannot be located. The legislation has now been referred to the House Judiciary Committee.
The legislation requires only that a company make a “reasonably diligent” search to locate a copyright owner before using their work in media including the Internet, and limits compensation required for the use of an infringed work.
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have advocated for reform of the current system for orphaned works, which automatically grants protections to their authors for decades, whether the authors realize it or not.
In comments sent to the U.S. Copyright Office in 2005, as legislation was brewing, Google General Counsel David Drummond wrote that orphaned works often “exist in a sort of purgatory,” and “represent an untapped wealth of information that can and should be made accessible to the public.”
Drummond cited the limits placed on orphaned works presented in Google’s then-nascent Book Search service, arguing that in many cases the author of an orphaned work would prefer to have it more prominently displayed via Google – but simply hasn’t realized that this is an option.
Drummond wrote that greater clarity on the status of orphaned works could provide comfort to companies such as Google, “that they can publish a work without fear of liability.”
In its own comments to the Copyright Office, Microsoft attorney Thomas Rubin wrote that the company “has on occasion experienced the challenges presented by orphan works,” noting that its online services make use of “both original and licensed content.”
Rubin wrote that changes in the law should be considered, including those that would afford certain legal protections to companies that have made a “good faith determination” that a copyrighted work has been orphaned before they use it.
A Google spokesman did not respond to a request for comment. A Microsoft spokesman was unable to comment.
Critics of the Orphan Works legislation, however, argue that it is too vague, and threatens to unnecessarily weaken the rights of copyright holders.
In an editorial written for the New York Times in May, Stanford University law professor Lawrence Lessig dismissed the legislation as “both unfair and unwise.”
Lessig argued that the definitions of what constitutes a “diligent” search for an orphaned work’s owner are unclear, and that the legislation requires too much unnecessary effort from copyright owners who have for many years been able to rely on automatic protections.
In a statement issued Monday, the National Press Photographers dismissed the Orphan Works Act as “a piece of special interest legislation,” and called on its members to voice opposition to it “as quickly, and loudly, as possible.”
In its own statement issued earlier, the Association of American Editorial Cartoonists said the legislation “threatens the livelihoods of everyone who relies on copyright for a living.”
Register of Copyrights Marybeth Peters has sought to reassure the legislation’s critics, writing in an online posting Thursday that it contains “clear conditions designed to protect copyright owners.”
Peters wrote that companies must, “Take all reasonable steps, employ all reasonable technology, and execute the applicable search practices” before using an orphaned work, which must then include an attached “orphan symbol,” in order to “increase transparency and the possibility that an owner may emerge.”
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