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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 Submits Comments Regarding Orphan Works

January 26th, 2013 by and tagged , , , , , , , , , , , , , , , , ,

The National Press Photographer’s Association (NPPA) has, in response to a Notice of Inquiry (NOI) by the Copyright Office, submitted comments on the issue of orphan works and mass digitalization. The Copyright Office has solicited comments for use in advising Congress on how to address current issues involving copyright and orphan works.

These official comments, written by NPPA attorneys Mickey Osterreicher and Alicia Calzada, with contributions from board member Greg Smith and NPPA intern Joan Blazich, discuss the issues currently facing visual journalists regarding copyright and propose solutions for creating a system which would treat copyright holders and users of orphaned works fairly and efficiently.

The comments state that “NPPA is gravely concerned that in seeking to address the frustration of ‘good faith users’ of Orphan Works in order to cure their potential liability and ‘gridlock in the digital marketplace,’ the Copyright Office may create a far more serious problem for authors/owners of visual works.” The comments also note that “As visual journalists, our members are squeezed from every side by onerous contracts seeking all rights for little compensation, the proliferation of user generated content by publishers and the widespread infringement of visual works by individuals and organizations. While we understand and appreciate the concerns of those in the copyright community who need to use Orphan Works, we believe it is crucial to protect the copyright of recently created visual works that, for whatever reason, appear to be orphaned when, in fact, they are not.”

NPPA attorneys Osterreicher and Calzada plan to attend the Copyright Office’s public hearings on orphan works once dates and times for those hearings are announced. As more visual journalists face situations in which their images are misappropriated under an “orphan works” claim, the NPPA proposes that if any legislation is enacted, it must include language that protects authors from predatory practices by those who would infringe upon our members’ work with impunity under the protection of a new law.

“Photographers are lucky to have advocates like Mickey, Alicia, Greg and Joan, who spend a great deal of time examining these issues and and how they will affect our members and all those who create content,” said NPPA President Mike Borland.  “The orphan works issue won’t be resolved soon and it certainly won’t be resolved properly without our voice being heard,” he added.

In accordance with that goal, the comments recommend significant limitations on what works qualify as orphans and which users would be entitled to such  protection. In addition, the NPPA advocated for registration of any uses of orphan works, along with a bond or insurance requirement to protect rights holders’ financial interests in the event they come forward to make a claim.

To read the NPPA’s comments, click here. To read the Copyright Office’s current NOI, click here. To read about previous Copyright Office inquiries on the subject of orphan works click here.

Posted in copyright, copyright infringement, National Press Photographers Association, NPPA, Orphan Works, Photographers' Rights, U.S. Copyright Office, Visual Journalists | No Comments »