Sounding Off in Chicago

In response to her letter of concern Ms. Gast received this reply from her Senator in Chicago, Barack Obama.

Dear Elizabeth:

Thank you for contacting me with your concerns about the Orphan Works Act of 2008. You raise some important concerns.As you know, the term 'orphan works' refers to copyrighted works whose owners are difficult or impossible to find. The U.S. Copyright Office has expressed concerns about the uncertainty surrounding the ownership of orphan works, and this view has been reiterated by both copyright owners and users, including artists and libraries. I have heard from many constituents who believe that this uncertainty discourages subsequent creators and users from incorporating orphan works into new creative efforts, or from making these works available to the public.

At the same time, you raise some important concerns regarding the potential implications of orphan works legislation on the photography and visual image industries, including many of my constituents who are photographers, illustrators, and graphic artists. It is often exceedingly difficult to find the copyright owner of a visual image, generally because the name of the image's creator is not on copies of the work distributed to the public. Thus, there is a real danger that the works of some of these artists might be inaccurately labeled orphan works.

As you know, this danger exists whether or not new legislation addressing orphan works is passed. However, I do understand your concerns regarding the new compensation mechanism proposed for orphan works use.

The Copyright Office has proposed that in most cases, including all commercial uses, the user of an orphan work would be obligated to pay the copyright owner 'reasonable compensation' for the use prior to the time the owner resurfaces. Also, the user will generally be unable to continue making use of the work after the owner asserts his copyright. The problem is that litigation costs associated with asserting this right to 'reasonable compensation' may be prohibitively expensive for many copyright holders. This critical point should be taken into account in ongoing discussions over orphan works legislation.

S. 2913 was introduced on April 24, 2008 by Senator Patrick Leahy (D-VT). It was referred to the Judiciary Committee for consideration. A companion measure in the House of Representatives, H.R. 5889, was approved by voice vote on May 8, 2008, by the Subcommittee on the Internet and Intellectual Property. While I do not serve on the panel considering the Orphan Works Act, you can be sure I will remember your concerns should this bill come before the Senate floor.

Again, thank you for contacting me regarding this important issue. Please stay in touch.

Sincerely,

Barack Obama
United States Senator

Unfortunately S. 2913 was passed by unanious consent on Friday September 26, 2008. I guess Barack forgot.