For update on Senate bill, see comments below.
The PRO-USE Act (H. R. 24) may seem like a small bill, but the more I think about it, the implications may be greater than they appear, and the implications are good. It gets the problem of at least some orphan works to the attention of Congress, and the bill would help libraries and others.
Perhaps you remember the small orphan bill that died quietly last term. I say small, since it doesn't come close to embracing the totality of the orphan works problem - great stuff written by dead people, languishing in library collections that yearns (in my humble opinion) to be put on the web.
I say small, since this bill addresses only the last twenty years of copyright (see the yellow column in my chart).
I say small, since this bill seeks to fix a technicality - that is return the musical, pictorial, graphic and sculptural works that were inadvertently left out (apparently a drafting error) when the Sonny Bono Act added twenty years of copyright term and partially returned them to libraries, archives, and some nonprofits under a set of conditions:
(A) the work is not subject to normal commercial exploitation;
(B) a copy or phonorecord of the work cannot be obtained at a reasonable price;
(C) the copyright owner or its agent has not provided notice to Copyright Office
I say small, since no one knows what "normal commercial exploitation" means, and quite frankly, risk averse institutions are not making use of this anyway. As a consultant I always urge people to use this provision.
And that's where I think the implications of this small bill are actually quite heartening. Howard "Hollywood" Berman (CA) is sponsoring HR 24, with John Conyers (MI) and Zoe Lofgren (CA).
The implication, I think, is that film preservationists are willing to use the provision (once it's extended to films), despite the wretched "normal commercial exploitation" language. Film copyrights are the absolute worst, what with underlying music, performance rights etc.
If they are going to the trouble of lobbying for this correction, and willing to use it, libraries should use works in those last twenty years too. And libraries are already legally covered for all works except musical, pictorial, graphic and sculptural works. That means they should be digitizing those church bulletins, newsletters etc.
Of course, none of this applies to unpublished works. We should push for their return to libraries too. And we have a chance to do so: as followers of the orphan issue know, the Copyright Office recently asked for our comments about orphan works, due March 25th.
For HR24 and for Howard Berman's remarks in Congressional Record January 6...
Due to the law of unintended consequences, drafters apparently forgot to read Section 108(i), which in unbelievably hard-to-read legal doublespeak says that musical, pictorial, graphic and sculptural works aren't included. So no one can use those 108(h)(the returned 20 years) to preserve orphan films. - Mary
Preservation and Restoration of Orphan Works for Use in Scholarship and Education (PRO-USE) Act of 2005 (Introduced in House)
H. R. 24 IH
January 4, 2005
Mr. CONYERS (for himself, Mr. BERMAN, and Ms. ZOE LOFGREN of California) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on House Administration, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Preservation and Restoration of Orphan Works for Use in Scholarship and Education (PRO-USE) Act of 2005'.
TITLE I--PRESERVATION OF ORPHAN WORKS
SEC. 101. SHORT TITLE.
This title may be cited as the `Preservation of Orphan Works Act'.
SEC. 102. REPRODUCTION OF COPYRIGHTED WORKS BY LIBRARIES AND ARCHIVES.
Section 108(i) of title 17, United States Code, is amended by striking `(b) and (c)' and inserting `(b), (c), and (h)'.
TITLE II--NATIONAL FILM PRESERVATION
SEC. 201. SHORT TITLE.
This title may be cited as the `National Film Preservation Act of 2005'.
Subtitle A--Reauthorization of National Film Preservation Act
SEC. 211. REAUTHORIZATION AND AMENDMENT.
(a) DUTIES OF THE LIBRARIAN OF CONGRESS- Section 103 of the National Film Preservation Act of 1996 (2 U.S.C. 179m) is amended:
(1) in subsection (b)--
(A) by striking `film copy' each place that term appears and inserting `film or other approved copy';
(B) by striking `film copies' each place that term appears and inserting `film or other approved copies'; and
(C) in the third sentence, by striking `copyrighted' and inserting `copyrighted, mass distributed, broadcast, or published'; and
(2) by adding at the end the following:
`(c) COORDINATION OF PROGRAM WITH OTHER COLLECTION, PRESERVATION, AND ACCESSIBILITY ACTIVITIES- In carrying out the comprehensive national film preservation program for motion pictures established under the National Film Preservation Act of 1996, the Librarian, in consultation with the Board established pursuant to section 104, shall--
`(1) carry out activities to make films included in the National Film registry more broadly accessible for research and educational purposes, and to generate public awareness and support of the Registry and the comprehensive national film preservation program;
`(2) review the comprehensive national film preservation plan, and amend it to the extent necessary to ensure that it addresses technological advances in the preservation and storage of, and access to film collections in multiple formats; and
`(3) wherever possible, undertake expanded initiatives to ensure the preservation of the moving image heritage of the United States, including film, videotape, television, and born digital moving image formats, by supporting the work of the National Audio-Visual Conservation Center of the Library of Congress, and other appropriate nonprofit archival and preservation organizations.'.
(b) NATIONAL FILM PRESERVATION BOARD- Section 104 of the National Film Preservation Act of 1996 (2 U.S.C. 179n) is amended--
(1) in subsection (a)(1) by striking `20' and inserting `22';
(2) in subsection (a)(2) by striking `three' and inserting `5';
(3) in subsection (d) by striking `11' and inserting `12'; and
(4) by striking subsection (e) and inserting the following:
`(e) REIMBURSEMENT OF EXPENSES- Members of the Board shall serve without pay, but may receive travel expenses, including per diem in lieu of subsistence, in accordance with sections 5702 and 5703 of title 5, United States Code.'.
(c) RESPONSIBILITIES AND POWERS OF BOARD- Section 105(c) of the National Film Preservation Act of 1996 (2 U.S.C. 179o) is amended by adding at the end the following:
`(3) REVIEW AND APPROVAL OF SPECIAL FOUNDATION PROJECTS- The Board shall review special projects submitted for its approval by the National Film Preservation Foundation under section 151711 of title 36, United States Code.'.
(d) NATIONAL FILM REGISTRY- Section 106 of the National Film Preservation Act of 1996 (2 U.S.C. 179p) is amended by adding at the end the following:
`(e) NATIONAL AUDIO-VISUAL CONSERVATION CENTER- The Librarian shall utilize the National Audio-Visual Conservation Center of the Library of Congress at Culpeper, Virginia, to ensure that preserved films included in the National Film Registry are stored in a proper manner, and disseminated to researchers, scholars, and the public as may be appropriate in accordance with--
`(1) title 17, United States Code; and
`(2) the terms of any agreements between the Librarian and persons who hold copyrights to such audiovisual works.'.
(e) USE OF SEAL- Section 107 (a) of the National Film Preservation Act of 1996 (2 U.S.C. 179q) is amended--
(1) in paragraph (1), by inserting `in any format' after `or any copy'; and
(2) in paragraph (2), by striking `or film copy' and inserting `in any format'.
(f) EFFECTIVE DATE- Section 113 of the National Film Preservation Act of 1996 (2 U.S.C. 179w) is amended by striking `7' and inserting `19'.
Subtitle B--Reauthorization of the National Film Preservation Foundation
SEC. 221. REAUTHORIZATION AND AMENDMENT.
(a) BOARD OF DIRECTORS- Section 151703 of title 36, United States Code, is amended--
(1) in subsection (b)(2)(A), by striking `nine' and inserting `12'; and
(2) in subsection (b)(4), by striking the second sentence and inserting `There shall be no limit to the number of terms to which any individual may be appointed.'.
(b) POWERS- Section 151705(b) of title 36, United States Code, is amended by striking `District of Columbia' and inserting `the jurisdiction in which the principal office of the corporation is located'.
(c) PRINCIPAL OFFICE- Section 151706 of title 36, United States Code, is amended by inserting `, or another place as determined by the board of directors' after `District of Columbia'.
(d) AUTHORIZATION OF APPROPRIATIONS- Section 151711 of title 36, United States Code, is amended by striking subsections (a) and (b) and inserting the following:
`(a) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated to the Library of Congress amounts necessary to carry out this chapter, not to exceed $530,000 for each of the fiscal years 2005 and 2006, and not to exceed $1,000,000 for each of the fiscal years 2007 through 2015. These amounts are to be made available to the corporation to match any private contributions (whether in currency, services, or property) made to the corporation by private persons and State and local governments.
`(b) LIMITATION RELATED TO ADMINISTRATIVE EXPENSES- Amounts authorized under this section may not be used by the corporation for management and general or fundraising expenses as reported to the Internal Revenue Service as part of an annual information return required under the Internal Revenue Code of 1986.'.
(e) COOPERATIVE FILM PRESERVATION-
(1) IN GENERAL- Chapter 1517 of title 36, United States Code, is amended--
(A) by redesignating sections 151711 and 151712 as sections 151712 and 151713, respectively; and
(B) by adding at the end the following:
`Sec. 151711. Cooperative film preservation
`(a) COOPERATIVE FILM PRESERVATION-
`(1) IN GENERAL- The corporation shall design and support cooperative national film preservation and access initiatives. Such initiatives shall be approved by the corporation, the Librarian of Congress, and the National Film Preservation Board of the Library of Congress under section 105(c)(3) of the National Film Preservation Act of 1996.
`(2) SCOPE- Cooperative initiatives authorized under paragraph (1) may include--
`(A) the repatriation and preservation of American films that may be found in archives outside of the United States;
`(B) the exhibition and dissemination via broadcast or other means of `orphan' films;
`(C) the production of educational materials in various formats to encourage film preservation, preservation initiatives undertaken by 3 or more archives jointly; and
`(D) other activities undertaken in light of significant unfunded film preservation and access needs.
`(b) AUTHORIZATION OF APPROPRIATIONS-
`(1) IN GENERAL- There are authorized to be appropriated to the Library of Congress amounts not to exceed $1,000,000 for each of the fiscal years 2006 through 2015, to carry out the purposes of this section.
`(2) MATCHING- The amounts made available under paragraph (1) are to be made available to the corporation to match any private contributions (whether in currency, services, or property) made to the corporation by private persons and State and local governments.
`(3) LIMITATION RELATED TO ADMINISTRATIVE EXPENSES- Amounts authorized under this section may not be used by the corporation for management and general or fundraising expenses as reported to the Internal Revenue Service as part of an annual information return required under the Internal Revenue Code of 1986.'.
(2) TECHNICAL AND CONFORMING AMENDMENT- The table of sections for chapter 1517 of title 36, United States Code, is amended by striking the items relating to sections 151711 and 151712 and inserting the following:
`151711. Cooperative film preservation.
`151712. Authorization of appropriations.
`151713. Annual report.'.
Here are Howard Berman's comments on The`Preservation and Restoration of Orphan Works for Use in Scholarship and Education (PRO USE) Act of 2005. (Congress actually gives libraries a run for their money when it comes to acronym-making.)
The PRO USE Act aims to correct this oversight. A similar bill was introduced and failed last term.
[Congressional Record: January 6, 2005 (Extensions)] [Page E41] From the Congressional Record Online via GPO Access [wais.access.gpo.gov] [DOCID:cr06ja05-45] INTRODUCTION OF H.R. 24, THE ``PRESERVATION AND RESTORATION OF ORPHAN WORKS FOR USE IN SCHOLARSHIP AND EDUCATION (PRO USE) ACT OF 2005'' ______ HON. HOWARD L. BERMAN of california in the house of representatives Thursday, January 6, 2005 Mr. BERMAN. Mr. Speaker, on January 4, I joined the distinguished gentleman from Michigan, Representative John Conyers, and the distinguished gentlelady from California, Ms. Lofgren, in introducing H.R. 24, the ``Preservation and Restoration of Orphan Works for Use in Scholarship and Education (PRO USE) Act of 2005.'' The PRO USE Act will benefit libraries, archives, schools and other users of copyrighted works. It will do so by facilitating the preservation, use, and dissemination of orphaned works. Though a technical amendment, Title I of the PRO USE Act makes a important change in the Copyright Act. The Sonny Bono Copyright Term Extension Act (SBCTEA) enacted section 108(h) of the Copyright Act to ensure that copyright term extension would not adversely impact the preservation, scholarly, and research work of libraries, archives, and non-profit educational institutions. Section 108(h) permits such entities to reproduce, distribute, display and perform copyrighted works during the extended copyright term if the work is not subject to commercial exploitation and is not available at a reasonable price. Unfortunately, due to a drafting oversight, the SBCTEA did not amend section 108(i). As a result, section 108(h) cannot fully achieve its intended objective. Section 108(i) in effect renders 108(h) partially meaningless by excluding musical, pictorial, graphic and sculptural works, as well as motion pictures and other audiovisual works, from the scope of 108(h). In other words, section 108(i) prevents archives from preserving and performing an orphan film in its last 20 years of copyright term. The PRO USE Act will correct this oversight, and thus enable libraries and archives to reproduce, distribute, perform, and display all orphan works in the course of their preservation, scholarly, and research activities. Title II of the PRO USE Act will also facilitate the preservation of, and scholarship related to, orphaned motion pictures. Title II reauthorizes the National Film Preservation Board (NFPB) and the National Film Preservation Foundation (NFPF) for 10 years. The NFPF is an independent, nonprofit organization established in 1996 with bipartisan congressional support to help save America's film heritage. The NFPF is the charitable affiliate of the NFPB of the Library of Congress, which was also established in 1996. This legislation also increases the authorized appropriations for the NFPF from $530,000 in fiscal year 2005 and 2006 up to $1,000,000 in fiscal years 2007 through 2915. It authorizes additional appropriations not to exceed $1,000,000 for cooperative film preservation and access initiatives by the NFPF for each of the fiscal years 2006 through 2015. All authorized appropriations are only to be made available to match private contributions to the NFPF. The excellent work and strong track record of the NFPB and NFPF justify both the reauthorization and increased authorization of appropriations provided by this bill. Working with archives and others in the film preservation community, the NFPF supports activities that save films for future generations, improve film access for education and exhibition, and increase public commitment to preserving film as a cultural resource, art form, and historical record. In essence, its mission is to save America's ``orphan films''--newsreels, silent films, documentaries, avant-garde works, and other independent films that are not preserved by commercial interests. Since its inception, the NFPF has done great work in furtherance of this goal. Working with more than 80 organizations, it has helped preserve approximately 600 films and collections. Through its preservation efforts, the NFPF has made it possible for organizations in 34 States and the District of Columbia to use these films in education and research. Many of the films preserved provide unique windows into American history and culture. For instance, films preserved through NFPF efforts include social dramas from Thomas Edison's studio, the earliest ``talkie'' of an American president, and home movies clandestinely shot by Japanese Americans in World War 11 detention camps. With authorization for the NFPB and NFPF having expired on September 30, 2003, congressional reauthorization is long overdue. Reauthorization not only provides these organizations with important recognition, but is also critical to their ability to attract the private donations that provide a great majority of their funds. Failure to reauthorize will hamper the critical work of the NFPB and NFPF. Over 50 percent of the films made before 1950 have disintegrated, and only 10 percent of the movies produced in the United States before 1929 still exist. We must act to stem further losses of this rich cultural heritage. No art form is more uniquely American than film, but unfortunately, few art forms are more susceptible to degradation through passage of time and poor preservation. I hope that all parties interested in preservation and expansion of the public domain, whether for research, education, or further commercial exploitation, join Representative Conyers, Representative Lofgren, and myself in pressing for passage of the PRO-USE Act. This bill will provide real, tangible help to those interested in preserving orphaned works and enhancing the public domain. The failure of the 108th Congress to pass the same legislation shows it will not be easy to pass. Thus, we need all champions of the public domain to devote their efforts to the passage of this legislation. While working to pass this targeted legislation may not seem as intellectually stimulating as debating radical copyright revisions or arguing novel legal theories before the courts, it will provide real, tangible benefits. ____________________