In a statement, NUJ General Secretary Jeremy Dear said “I urge all Senators and House members to oppose these Bills, because passing them would undermine the creativity that is so important to the economy of the United States and of its allies.”

The proposed bill seeks to limit the liability of those who publish so-called ‘orphan works’ – copyrighted material where the copyright holder is unknown or untraceable by the would-be publisher. The nature of such material and the ready availability of uncredited material on the internet means it will inevitably affect any copyright holders outside the US, including photographers.

The NUJ statement says the proposed legislation “creates the perception of a free-for-all”, adding that it would “encourage scams and rip-offs of authors, who will be left with no recourse unless they can raise many tens of thousands of dollars to fund pursuing abuses of their works through the civil courts”.

‘Free for use’ copyright pictures

The current proposals – called the Shawn Bentley Orphan Works Bill in the Senate, and the Orphan Works Bill 2008 in the House of Representatives – would make any such ‘orphans’ effectively free for use, provided the publisher had registered in advance a ‘reasonably diligent’ attempt to try to trace the copyright holder.

While publishers would be required to pay ‘reasonable compensation in a reasonably timely manner’ to the author or photographer if they became known, the only legal recourse to the copyright holder if publishers failed to do so would be to raise a court action in the US, which would be both impractical and disproportionally expensive for the vast majority of infringements.

The debate surrounding US orphan works legislation has acrimoniously divided US photographers’ organisations, with the American Society of Media Photographers (ASMP) and the Professional Photographers of America (PPA) coming out broadly in favour of current legislation. However, online debate suggests that many members are unhappy with the stance taken by their representative organisations.

EU likely to introduce ‘orphans’ exemptions

While the statement is likely to have little practical effect on the passage of either US bill, it sets out the NUJ’s position in advance of similar copyright exemptions being floated in the EU.

In the UK, the 2006 Gowers Review of Intellectual Property recommended making a similar provision to the European Commission to allow the copying and publishing of orphan works under certain circumstances. At the time, the NUJ made a submission that any such use should include a ‘token payment’ to be held in trust, to be passed to the copyright holder should their identity subsequently become known.

The most recent statement suggests several additional points to safeguard the rights of copyright holders. These include the publisher paying the commercial value of the specific use in advance, to be reviewed if the original copyright holder becomes known, and that the introduction of the law be delayed until authors worldwide have “inalienable moral rights” to be identified alongside publication or reproduction of their work.

Jeremy Dear says: “NUJ members’ work is used all over the world, as is the work of US writers and photographers. They deserve – and they have in law – the right to fair pay for every use. We need international solutions, that respect international law.”


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