Senate Judiciary Passes Orphan Works Bill; Net Radio Amendment Withdrawn
The Senate Judiciary Committee agreed not to burden an orphan works bill with unrelated provisions and approved it at a Thursday markup. Sen. Sam Brownback, R-Kan., offered an Internet radio amendment to the bill, S-2913, as expected (WID May 15 p1). But he withdrew the measure after getting a promise that it would be considered in another hearing. Several uncontroversial bills, including one to add federal resources to fight child porn, passed in quick succession so senators could attend a police memorial service.
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Substitute language by Chairman Patrick Leahy, D-Vt., and Sen. Orrin Hatch, R-Utah, was approved for S-2913. A revised section on “qualifying searches” removes language on court interpretation, instead broadly defining a “diligent effort” to find a copyright owner. Also new: A qualifying search can include “use of resources for which a charge or subscription fee is imposed,” if the use is “reasonable” and “relevant” to the search. The manager’s amendment removes a section giving a court leeway to award the proceeds of infringement to the copyright owner.
The amendment prevents a court from restraining an infringer’s “continued preparation or use” of a new work, based on the owner’s work, but only if the infringer pays “reasonable compensation” -- what a willing buyer and seller would agree to -- and credits the owner. The original bill wouldn’t let a court restrain for any reason an infringer’s “continued preparation or use.” The amendment also removes limits on remedies for infringement of works showing up on “useful articles” -- say, an online photo printed on a T- shirt for sale. The amended bill’s effective date still depends on Copyright Office certification of at least two “separate and independent” electronic databases for searching pictorial, graphic and sculptural works. It could take effect as early as Jan. 1, 2009, and as late as 2013. And the databases no longer must be available on the Internet, but only “available to the public.”
The bill has “strong support” from Register of Copyrights Marybeth Peters, Leahy said in a written statement. The RIAA, MPAA, Software and Information Industry Association and Association of American Publishers endorse it. Illustrator and photographer groups have said the bill would make it more difficult to protect their copyrights (WID March 14 p2). Public Knowledge President Gigi Sohn said the fair-use advocacy group would work with the committee to ensure that artists aren’t sued while creating their works, and to create a “workable process” for devising the undefined “best practices” that the bill calls for.
Internet Radio Should Be Considered with Terrestrial
Brownback’s amendment to give Internet radio “parity” with cable and satellite platforms drew measured sympathy. “If something isn’t done, a lot of these folks are going to be driven out” of business, he said. “There’s not much… of a payment stream” for companies to pay the higher rates set by the Copyright Royalty Board, Brownback said, alluding to webcasters’ theme that intrusive advertising on streams will alienate users. Leahy said he supported the amendment’s aims but asked Brownback to wait for a “better place to raise this,” namely a proposed hearing for Leahy’s Performance Rights Act (S-2500), which would end terrestrial broadcasters’ exemption from paying performance royalties. That bill hasn’t been touched since it was introduced in December (WID Dec 19 p7). Brownback said Internet radio should have its own hearing, and Leahy agreed, “We will try to find a way.”
Sen. Dianne Feinstein, D-Calif., asked Leahy to include her PERFORM Act in any such hearing. That bill, which has languished the entire 110th Congress, would set parity between platforms, use a “fair-market value” standard for setting rates, and most controversially, require providers and manufacturers to use “readily available and cost- effective technology” to stop unauthorized copying, such as recording songs on satellite radio players (WID Jan 12/07 p4). Leahy said he may want to handle the royalty-related bills in a subcommittee hearing first.
Child Porn Bill: Too Much Money for Task Forces?
The Combating Child Exploitation Act (S-1738) also passed with a manager’s amendment. It clarifies that the DoJ’s Internet Crimes Against Children database is intended to “continue and build upon” a Wyoming system seen as a national leader (WID April 17 p2). The amendment expands federal jurisdiction over Internet child porn cases when it’s unclear whether images were sent interstate. Real-time transmission of video portraying child abuse is banned, as is altering an image of a real child to create a sexually explicit image. The National Institute of Justice is assigned to study abuse of children by those trading in child porn.
Sen. Jeff Sessions, R-Ala., questioned its cost. “With all due respect… a billion dollars for this bill” would give roughly $1 million to each Internet Crimes Against Children task force, “way beyond what we need,” he said. “Usually there’s no money at all” for the task forces, Sessions said: Police, FBI agents and Customs officials simply work together using their own money. But the bill should include more money for training, he added. Like the other bills, it passed on a voice vote.