Legislators in both houses offered substantial concessions to photographers, the textile industry and other visual-works rightsholders who’ve opposed orphan works legislation in the past. The bills call for the U.S. Copyright Office to certify private searchable databases that would allow users to actually see a sample of each work, but also protect against unauthorized screen scraping. Under the proposed House bill, users would have to notify the Copyright Office each time they intend to use an orphan work and to provide substantial information about their efforts to find the missing rightsholders.

Rightsholder and user groups both are split. Among rightsholders, publishers (significant content users in their own right) favor the less restrictive Senate bill, while photographers are lined up behind the House version. Illustrators appear to remain firmly opposed to any substantive change to current law. User groups, including colleges, libraries and documentary producers, are finding that requirements of the bills are testing their longstanding support for a solution to the orphan works dilemma, though some seem prepared to accept a less-than-hoped-for outcome. But at least one prominent university advocate has concluded that no legislation is preferable to that being offered.

If the legislation stands a chance in this Congress, it will need to be pushed through both houses quickly. In this election year, little substantive work will take place after the start of summer. At this point, it’s a toss up whether key groups and both houses can resolve their differences by then.

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Not surprisingly, some authors viewed the plan as heretical. Others, however, noted that in view of the challenges facing the trade publishing industry, fresh thinking is long overdue.

By nearly eliminating author advances, HarperCollins’ new publishing unit aims to attract authors who might otherwise be considered too risky. Those include new authors who are yet unproven and successful authors interested in writing different kinds of a books than what they’re known for. The publisher plans to release about 25 books a year in multiple formats.

It is unclear how retailers ultimately will react to the prospect of getting stuck with unsold books. These aren’t good times for most booksellers, as was evidenced by reports that the second largest book retailer, Borders, is strapped for cash and may sell the business. Conceivably booksellers might demand a larger cut of the sale if they can no longer send returns back to the publisher.

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The Study Group recommended a number of legislative changes to Section 108 to facilitate preservation and archiving of published and unpublished material, unrestricted online content and television news programs. The report also reviewed many issues on which the members—often divided between the interests of rights holders and librarians—could not reach full agreement.

There were no major bombshells in the report. Interestingly, the Study Group identified, but refrained from proposing recommendations on, a number of significant copyright issues worthy of further study and consideration. These included the use of movies and other non-text-based materials in the library context, technology circumvention and e-reserves.

Nineteen copyright experts served on the Section 108 Study Group, which was co-chaired by UNC School of Law Associate Dean for Academic Affairs Laura Gasaway and Richard Rudick, retired Senior Vice President and General Counsel of John Wiley and Sons (and Vice Chairman of Copyright Clearance Center’s Board of Directors). The Study Group’s report may be used by the Copyright Office to draft legislative recommendations to Congress.

The group’s years of effort and the resulting report illustrate just how challenging it is to find consensus on copyright issues and, ultimately, how daunting the task of writing copyright legislation can be. Yet the pace of technological and social change around the topic has led to calls in some quarters to consider a revising of the 1976 Act for a new generation (just as the 1976 Act replaced the 1909 Act). Whether it will come to that in the near term is doubtful, but the pressures being created in the digital environment are equally hard to ignore.

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Subcommittee chairman Howard Berman made it quite clear that he intends to introduce new orphan works legislation shortly and would like to receive the cooperation of interested parties such as those who gave testimony on March 13. It is likely the new bill will look very similar to The Orphan Works Act of 2006, which was proposed and received substantial bipartisan support, but was never enacted, in the last Congress.

Given concerns previously expressed by some visual artist groups, the IP Subcommittee will probably make a few revisions to the language. Photographers, textile designers and graphic designers have argued that, unlike written content, their materials usually do not contain rightsholder information through no fault of the applicable rightsholders, and therefore orphan works legislation must address their unique infringement challenges.

Since this is an election year, and re-election campaigns will be in full swing by late summer, new orphan works legislation will probably be fast-tracked to reach the floor of the House by mid-May.

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Under copyright law, Viacom will still be able to seek statutory damages. The programming giant filed an infringement suit against YouTube and Google in March 2007, claiming about 160,000 video clips from Viacom programs were posted on YouTube without permission and compensation. Google claims that its actions are covered by the Digital Millennium Copyright Act (DMCA).

Last month, a federal judge granted Google’s request for more time to hand over documents in the case. The deadline was extended to May.

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The review shows a hike in estimated losses for three out of the five industries represented by the IIPA—music, business and entertainment software. IIPA member, the Association of American Publishers showed a $30 million drop in piracy losses compared to the prior year. The AAP reported some progress in its work with government officials in a number of Asian countries to tackle unauthorized commercial-scale copying and printing of textbooks and journals.

Interestingly, the IIPA review did not include loss estimates for the motion picture industry. Last month, the Motional Picture Association of America announced that their 2005 commissioned study on piracy significantly overshot estimated losses from peer-to-peer file sharing by college students.

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Despite sometimes controversial publisher opposition to the legislation, the provision comes as no surprise. For several years, various proponents of open access, led by the Alliance for Taxpayer Access have argued that patients, healthcare professionals and scientists should have free, timely access to taxpayer-funded research.

In 2006 Congress proposed, but never voted on a bill that would have required open access to peer-reviewed manuscripts within six months of publication. The new law is slightly more favorable to publishers, mandating that researchers add their material to the National Library of Medicine’s PubMed Central database no later than 12 months after publication.

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The new Prioritizing Resources and Organization for Intellectual Property (PRO IP) Act calls for tougher civil and criminal copyright and trademark infringement penalties, and has already stirred criticism among the content user community.

Among other things, the bill would allow the Justice Department to seize computers or other property used or intended to be used to violate copyright law, and would increase potential fines and prison sentences for infringers. If passed, the PRO IP Act would also establish a new federal position, an IP czar, to be appointed by the President.

Given its controversial nature, it is hard to imagine that this bill will go anywhere in Congress. More likely, it is the latest in a series of copyright bills over the years designed primarily to generate rightsholder support for political candidates on the eve of another election year.

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Conde Nast’s decision to shutter H&G comes on the heels of Time Inc.’s folding of Business 2.0 and Newsweek’s move to cut its rate base by 16 percent.

Charles Townsend, CEO of Conde Nast Publications, said the magazine was no longer a viable business investment for the company, despite its circulation of nearly a million. This is the second time Conde Nast has shut down H&G. The first was in 1993; it was revived three years later.

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This isn’t the first time groups representing rightsholders have tried to promote copyright awareness to children. Last year Access Copyright briefly reached out to Canadian school kids with a “Captain Copyright” campaign. Recently the National Center for State Courts introduced a “graphic novel” highlighting the dangers of illegal music downloads. Even the U.S. Copyright Office has introduced an online cartoon series.

But these programs have little proven value and are fraught with risks. Explaining copyright to kids who can’t even spell it is tough; many adults don’t even understand the ins and outs of the law. Worse, these programs too often take a hard line on an issue that is filled with nuance, and in doing so undermine the point their creators are trying to make.

The ESA effort already has come under attack from parents and bloggers who accuse the organization of pushing its agenda on young children. Similar complaints caused Access Copyright to shelve Captain Copyright shortly after his debut.

At CCC, we’re all for educating people about their rights and responsibilities when it comes to copyright. We consider it part of our mission to create materials and run programs for corporations and academic institutions. But the question of how young is too young for kids to consume these ideas is a question industry organizations need to ask.

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