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WHAT CHA HAS DONE TO DATE AND WHAT WE SHOULD DO NOW

When Senators Leahy and Hatch asked the Copyright Office to draft legislation designed to ameliorate the problem of "orphan works," the Graphic Artists Guild and a small number of other visual art groups met with the Copyright Office and submitted written comments. Their concerns were largely disregarded and the Copyright Office recommended legislation that did not take their specific issues into account. Representative Lamar Smith then introduced legislation that largely mimicked the Copyright Office recommendation, with Senators Leahy and Hatch promising to soon introduce companion legislation. The Graphic Artists Guild, joined by the Craft and Hobby Association and George Little Management, hired lobbyist Megan Gray to work on their behalf. She spent an inordinate amount of time writing to diverse industry associations in the plethora of visual art enterprises to alert them to the legislation and to invite them to help fund this expensive lobbying endeavor.

Since the legislation was introduced, Ms. Gray has held in-person meetings with the Copyright Office multiple times, with Senate offices on the key Judiciary Committee more than 20 times, with House of Representative offices on the key Judiciary Committee more than 20 times, and with more than 10 additional Hill offices that will play important roles as the legislation moved through to enactment. Ms. Gray also met with three Senators and is scheduled to meet with Representatives as well. In addition, Ms. Gray has met with many other stakeholders on all sides of this issue, including the Recording Industry Association of America, the American Association of Publishers, the American Library Association, Public Knowledge, the American Association of Media Photographers, Larry Lessig, the documentary filmmakers, the Decorative Fabrics Association, the Association of Contract Manufacturers, the Software & Information Industry Association, PicScout, and many, many others. As part of the lobbying effort, Ms. Gray has circulated a variety of briefing papers, including (1) Real World Applications of Orphan Works to Visual Art; (2) the Case for an Image-Recognition Database at the Copyright Office; (3) Graphic Arts Industry Summary; (4) Solutions to the Orphan Works Dilemma; (5) Summary of Orphan Works; (6) Copyright Legislation and American Textile Competitiveness; and (7) Deposits of Visual Art at the Copyright Office. For specific Senate and House offices, Ms. Gray has also compiled state-specific handouts on the importance of the visual arts industries by geographic region. To educate the public at large, especially the artists themselves, Ms. Gray has also visited trade shows, published articles (including in the Craft & Hobby Association magazine), given presentations, and worked with bar associations to draft appropriate resolutions regarding "orphan works."

As a result of this lobbying work, the legislation has gone through numerous iterations in an effort to try to accommodate the concerns of the visual art groups. As has been noted in other contexts, making legislation is a lot like making sausage, and there are numerous well-funded and important constituencies who are working very hard to pass orphan works legislation without any special accommodations for visual artists. Ms. Gray has lobbied for numerous changes to the legislation but has had to focus on political reality and what is possible to obtain in compromise legislation. As a result, the visual art groups have been able to obtain some key provisions such as inclusion of a later date for the bill to go into effect, focus on a database that would make it possible to search images, exclusion of "useful articles" from the bill (a complex term defined in the Copyright Act that would apply to textiles and other items), and -- at least in the House bill -- a publicly accessible "notice of use" statement. The "notice of use" provision would function like a "lost and found" room, permitting copyright owners to identify their works that have, through no fault of the owners, been unable to be traced back to them by a user. The "notice of use" provision would also serve the important role of preventing bad faith users from abusing the litigation system by falsely claiming to have searched for the copyright owner.

As of mid-May 2008, the Senate Judiciary Committee approved an "orphan works" bill that is an improvement over past bills but which is still likely to cause severe harm to artists and their industries. The next step is a vote by the full Senate. Without listing all the deficiencies, the bill does not even contain a "notice of use" provision, which means that copyright owners can do nothing to prevent their works from being commercially exploited as purported "orphans." The Craft and Hobby Association urges its members to write to their senators, asking them to halt all progress on the bill until it is amended to protect visual artists and to include, at a minimum, a publicly accessible "notice of use" filing. Letters to senators should include in the first paragraph information regarding the writer (especially noting if he is a constituent), the name of the bill, and the writer's position, particularly as to the "notice of use" provision.

"The Craft and Hobby Association urges its member to write to their senators, asking them to halt all progress on the bill until it is amended to protect visual artists and to include, at a minimum, a publicly accessible "notice of use' filing."

The link below can help you get started. Click on the link for a sample letter to use. You may also personalize your own letter. Just by taking a few minutes of your time, a letter will automatically be emailed to the US Senate. We recommend you also print out the letter and mail it.


Take action by Clicking Here

In addition, as of mid-May 2008, the House Subcommittee on Courts, Intellectual Property and the Internet has approved an "orphan works" bill that is an improvement over past bills and which contains a "notice of use" provision. However, this "notice of use" is not publicly accessible for review by copyright owners. Even in its hidden role, many stakeholders are fighting to strip this provision to the bill. The visual art groups are, of course, fighting to keep it in and to make it an open archive. The next step in the process is unclear, as the bill's sponsors have indicated that they will be working to address a variety of provisions. At some future point, it is expected that the bill will be presented to the House Committee on the Judiciary for a vote, perhaps in amended form. Once it is more apparent what the Judiciary Committee will be presented with, the Craft and Hobby Association will alert its members and recommend action as may be appropriate. In the meantime, Megan Gray will continue her extensive efforts to influence the legislation.

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