Search

Additional Comments Filed by NPPA and Other Groups Following Orphan Works Roundtables

May 27th, 2014 by and tagged , , , , , , , , , , ,

Additional comments were filed by the National Press Photographers Association (NPPA) on May 20, 2014 on the issue of Orphan Works and Mass Digitization, as a follow-up to roundtable discussions held by the U.S. Copyright Office in Washington, DC on March 10-11, 2014. (See: http://www.copyright.gov/orphan/transcript/0310LOC.pdf and http://www.copyright.gov/orphan/transcript/0311LOC.pdf for transcripts of day 1 and 2 of those discussions).

The filing by NPPA supplemented additional post-roundtable comments submitted by the Digital Medial Licensing Association (PACA) on behalf of the Professional Photographers of America (PPA), the American Photographic Artists, Inc. (APA), the American Society Of Media Photographers (AMSP), the Graphic Artists Guild (GAG) as well as NPPA) in response to a Notice of Inquiry issued by the U.S. Copyright Office in February,  2014. These most recently submitted comments expanded on initial comments (submitted by NPPA to the Register on January 24, 2013).

The comments primarily responded to discussions at the round table from stakeholders who think that orphan works legislation is no longer necessary given their increased reliance on the doctrine of fair use. It is the position of the NPPA that, while the doctrine of fair use can be used as an affirmative defense, it is certainly is not broadly available to allow the use of photos without permission, credit or compensation. “This one size fits all approach appears to be what is turning Title 17 law on its head with copyright now becoming the exception to fair use. Rather than conducting a proper balancing of the four fair use factors, a number of courts have made such ruling once they determine that a use is transformative. NPPA asserts that this type of analysis was never intended to be applied as the sole determinative element in making a fair use ruling in an individual copyright infringement case, let alone in one involving mass digitization of millions of works,” wrote NPPA general counsel Mickey H. Osterreicher and advocacy committee chair Alicia Wagner Calzada (who is also an attorney) in their jointly drafted comments.

The problem of social media websites automatically stripping out any and all identifying metadata when images are uploaded to their sites, thus creating instant orphans of contemporary work, is also “an issue that needs to be addressed more seriously and, once properly resolved, would help rectify most of the orphan works concerns expressed by users,” the NPPA comments concluded.

Posted in copyright, copyright infringement, National Press Photographers Association, NPPA, Orphan Works, photographers, photojournalism, U.S. Copyright Office | No Comments »

NPPA Joins Brief Supporting Journalists’ Use of Unmanned Aerial Systems

May 7th, 2014 by and tagged , , , , , , , , , , ,

The NPPA and a coalition of media organizations have joined to file a legal brief in a case that may help shape the future of the use of unmanned aerial systems (“UAS”) by journalists nationwide.  The brief, filed by the law firm Holland & Knight on behalf of the NPPA and 13 other media organizations, argues in favor of a UAS pilot fined by the FAA for flying a model plane fitted with a camera around the University of Virginia in 2011.

A judge overturned the fine against Raphael “Trappy” Parker in March, but the FAA appealed that decision. The National Transportation Safety Board will review the holding in the coming weeks.  The approaching NTSB review will focus, in part, on whether the FAA’s current ban on the unlicensed commercial use of small UAS exceeds its administrative authority.

The amicus brief argues that the FAA’s current policy is overly broad, and improperly fails to draw a distinction between commercial uses and “the use of UAS technology for the First Amendment-protected purpose of gathering and disseminating news and information.”  The brief contends that lagging administrative proceedings to update the rules and minimal efforts to grant licenses to private parties have combined with current policies to essentially ban civilian use of UAS.

NPPA General Cousel Mickey Osterreicher said the blanket ban improperly burdens journalists.

“With the advent of smaller and more advanced aerial platforms which are simple to operate and inexpensive to purchase, it is logical that innovative visual journalists [would] seek to report the news by using these devices to capture images with which to better inform the public,” Osterreicher said.  Osterreicher pointed to aerial photographs of the aftermath of the recent building explosion in Harlem as an important example of this type of publicly beneficial use.

The Supreme Court has repeatedly reaffirmed the idea that the First Amendment extends some protection to newsgathering activities.  By incorrectly deeming media organization’s use of UAS as a commercial activity, rather than a newsgathering application, current policies undermine significant constitutional concerns.  “Contrary to the FAA’s complete shutdown of an entirely new means to gather the news, the remainder of the federal government . . . has recognized that, in the eyes of the law, journalism is not like other business,” the brief asserts.

The particular utility of UAS for newsgathering purposes reinforces the First Amendment interests at stake.  A recent NPPA survey canvased approximately 50 news organizations and media associations to determine how small UAS could help journalists do their jobs.  The survey revealed UAS could aid in the reporting of newsworthy events such as natural disasters, accidents, and adverse weather conditions, where safety concerns or other restrictions might otherwise limit coverage.

Even strong proponents of UAS concede that increased use might present some dangers, especially in highly populated areas.  However, the brief argued, “the News Media Amici and the government can address legitimate safety concerns while protecting First Amendment rights and providing the public with enhanced access to important information.”  The government’s delay in promulgating a formal rulemaking process to consider the balancing of these interests is a central basis for the challenge to current policy.

The brief also argued that privacy concerns arising from media organizations’ use of UAS could be addressed by existing laws, and that forward looking policy determinations regarding privacy should be “based on a discussion among policy makers, privacy advocates, and industry.”

The other problem with the FAA’s current policy is that it was arguably adopted without proper administrative procedures.  When an agency seeks to establish enforceable rules or regulations, as it did here, it must meet certain legal requirements.   The lack of proper procedure is compounded by an absence of clarity in the policy itself, leading to outcomes that depart from legal norms, such as the regulation of model airplanes under general federal aviation regulations.

The current state of the law on UAS use for newsgathering purposes demands swift action from the FAA, Osterreicher concluded:

“It is incumbent that the FAA chart a pragmatic and expedited course in its administrative rulemaking. There is neither room nor time for complacency or hubris in addressing this matter, lest, flying too low or too high it end up failing like Icarus in an attempt to rule the sky.”

Osterreicher will present the NPPA study and paper on UAS at a meeting of the Association for Unmanned Vehicle Systems International in Orlando next week.  The FAA’s “roadmap” for integrating civilian UAS usage is available here.

Posted in Access, First Amendment, First Amendment rights, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism | 2 Comments »