<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:28336.wais]
S. Hrg. 109-541
ORPHAN WORKS: PROPOSALS FOR A LEGISLATIVE SOLUTION
=======================================================================
HEARING
before the
SUBCOMMITTEE ON INTELLECTUAL PROPERTY
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
APRIL 6, 2006
__________
Serial No. J-109-68
__________
Printed for the use of the Committee on the Judiciary
_____
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28-336 PDF WASHINGTON : 2006
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
------
Subcommittee on Intellectual Property
ORRIN G. HATCH, Utah, Chairman
JON KYL, Arizona PATRICK J. LEAHY, Vermont
MIKE DeWINE, Ohio EDWARD M. KENNEDY, Massachusetts
LINDSEY O. GRAHAM, South Carolina JOSEPH R. BIDEN, Jr., Delaware
JOHN CORNYN, Texas DIANNE FEINSTEIN, California
SAM BROWNBACK, Kansas HERBERT KOHL, Wisconsin
TOM COBURN, Oklahoma RICHARD J. DURBIN, Illinois
Bruce Artim, Majority Chief Counsel
Bruce A. Cohen, Democratic Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1
prepared statement........................................... 83
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 3
prepared statement........................................... 88
WITNESSES
Cross, June, Documentary Journalist, and Assistant Professor of
Journalism, Columbia University, New York, New York,........... 8
Holland, Brad, Founding Board Member, Illustrators' Partnership
of America, Marshfield, Massachusetts.......................... 10
Pallante, Maria, Associate General Counsel and Director of
Licensing, The Solomon R. Guggenheim Foundation (Guggenheim
Museum), New York, New York.................................... 12
Perlman, Victor S., Managing Director and General Counsel,
American Society of Media Phographers, Inc., Philadelphia,
Pennsylvania................................................... 7
Prelinger, Rick, Board President, Internet Archive, San
Francisco, California.......................................... 16
Rubin, Thomas C., Associate General Counsel, Microsoft
Corporation, Redmond, Washington............................... 14
Sigall, Jule L., Associate Register for Policy and International
Affairs, U.S. Copyright Office, Washington, D.C................ 5
SUBMISSIONS FOR THE RECORD
Advertising Photographers of America, Jeff Sedlik, Chief Advisor
on Licensing & Copyright, George Fulton, National President,
and Constance Evans, National Executive Director, White Plains,
New York, letter and statement................................. 29
American Federation of Television and Radio Artists, Kim Roberts
Hedgpeth, National Executive Director, New York, New York,
prepared statement............................................. 53
American Society of Composers, Authors and Publishers, New York,
New York, prepared statement................................... 55
Cross, June, Documentary Journalist, and Assistant Professor of
Journalism, Columbia University, New York, New York, prepared
statement...................................................... 62
Holland, Brad, Founding Board Member, Illustrators' Partnership
of America, Marshfield, Massachusetts, prepared statement...... 85
Pallante, Maria, Associate General Counsel and Director of
Licensing, The Solomon R. Guggenheim Foundation (Guggenheim
Museum), New York, New York, prepared statement................ 89
Perlman, Victor S., Managing Director and General Counsel,
American Society of Media Phographers, Inc., Philadelphia,
Pennsylvania, prepared statement............................... 95
Prelinger, Rick, Board President, Internet Archive, San
Francisco, California, prepared statement...................... 100
Recording Artists' Coalition, Berliner, Corcoran & Rowe, LLP, Jay
Rosenthal, Esq., Washington, D.C., prepared statement.......... 103
Rubin, Thomas C., Associate General Counsel, Microsoft
Corporation, Redmond, Washington, prepared statement........... 109
Sigall, Jule L., Associate Register for Policy and International
Affairs, U.S. Copyright Office, Washington, D.C., prepared
statement and attachment....................................... 115
ORPHAN WORKS: PROPOSALS FOR A LEGISLATIVE SOLUTION
----------
THURSDAY, APRIL 6, 2006
U.S. Senate,
Subcommittee on Intellectual Property,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:07 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Subcommittee, presiding.
Present: Senators Hatch and Leahy.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. Well, good afternoon. We welcome all of you
to today's hearing on orphan works. With the panel of experts
we have before us today, the Subcommittee will be, in my
opinion, in for a lively discussion on this important topic. It
is very important, and we are finding that it is becoming more
and more important as we continue to look into it.
I would like to begin by providing some context for the
witness testimony, while reserving as much time as possible for
a panel discussion. As most people interested in this hearing
will already know, the term ``orphan works'' generally refers
to copyrighted works for which the owner is either not known or
cannot be found. With most forms of assets and physical
property, an owner is typically easy to identify with
reasonable efforts. For obvious reasons, identifying the owner
of a copyrighted work is much more difficult in many cases,
especially when information about the copyright holder is not
publicly known or incorporated into the same end product that
contains the work itself.
With very rare exceptions, many of which result in police
intervention, whoever is living in a house or driving a car is
either the property owner or someone with a personal or
contractual relationship with the owner. The same is not true
in the intangible world of copyrights, where the owner of an
individual book, videotape or photograph generally does not
hold the copyright to the underlying text or content.
Historically, copyright information has been included in
the end product. For example, the copyright holder will
frequently be listed in the movie credits, including album
liner notes, or printed on the back of a photograph. However,
with the advent of digital and Internet distribution models for
copyrighted works, it has become more difficult to attach such
copyright information to the copyrighted work itself.
These problems have been exacerbated by two sets of changes
in copyright law. First, because of the extension of the
copyright terms, many works are protected by copyright for
decades after the author has died and long after they cease to
have any significant economic value. The second set of changes
occurred as a result of our accession to the Berne Convention,
which prohibits conditioning copyright protection on
formalities such as registration or renewal. Because original
works receive automatic copyright protection without the need
for the owner to register the work, there is no centralized
registry that can be used to identify copyright holders.
As a result of these difficulties, it appears that a
significant number of works are protected by copyright without
any reasonable or effective way for potential users to identify
their owners. As a result, the public loses ongoing access to
and use of these works, without any corresponding benefit to
the author. As the Copyright Office concluded in its recent
report on the subject, such an outcome is not in the public
interest, particularly where the copyright owner is not
locatable because he no longer exists or otherwise does not
care to restrain the use of his work.
With respect to virtually every other type of property that
receives legal recognition, there are either equitable
doctrines in the law or statutory provisions addressing this
type of problem. In other areas of the law, the rights of an
owner are limited by things like adverse possession, salvage
rights, found treasure doctrines and abandonment theories.
Many believe that a similar concept should be applied to
copyright law and the Copyright Office has recommended
something along these lines. Under their proposal, a user who
performed a good-faith, reasonably diligent search for the
owner prior to using a copyrighted work would in most instances
have his or her damages liability limited to a reasonable
royalty rate. In certain instances, equitable relief would also
be limited.
I tend to believe that this type of approach would be
beneficial to copyright law and would allow artists, consumers
and academics the use of many works that have historical,
cultural and economic value. However, I suspect that we have a
range of opinions on the Copyright Office proposal, so I look
forward to hearing the opinions of our panel of expert
witnesses.
But, first, let us hear from the ranking Democrat member of
the Subcommittee and the ranking Democrat member of the full
Committee, Senator Leahy, whom I enjoy working with on these
issues very, very much because of his own ability to cut
through the maze and to come up with solutions that really have
worked in the intellectual property fields for really the
decades that we have been together.
[The prepared statement of Senator Hatch appears as a
submission for the record.]
Senator Leahy, we will turn to you.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Well, thank you, Mr. Chairman. As you know,
you and I have been able to put together some significant
bipartisan legislation in this area. As we find more and more
in the Senate, it is only the bipartisan legislation that
actually has a real chance of passing and getting signed into
law.
We are blessed to live in a country with such deep creative
roots. We have the best music industry in the world, the
greatest film industry in the world, the largest publishing
industry in the world, superb photographs, and we have millions
of creative works that are born from that. But there are many
works where no copyright owner can be found. These are the
``orphans,'' as Senator Hatch said. You can't use them for
reproduction, restoration, or adaptation because you can't find
the lawful copyright owners.
Under current laws, if you can't find the photographer who
took your great grandparents' wedding picture over 75 years
ago, no matter how hard you search, you can't have that picture
restored legally. In an example recently mentioned in the Wall
Street Journal, a Civil War historian wrote an article which
used several letters and diaries from soldiers. Although a
magazine initially agreed to publish the article, the publisher
pulled the piece because he feared litigation arising from the
use of those works. They were 150 years old.
Orphan works problems have a particularly unfortunate
effect on older films. Some of them are disintegrating and they
will disappear because we can't find who the copyright owners
are. I know the particularly vexing issues that confront the
professional photographer or illustrator with a great number of
works and the difficulty ensuring that others do not claim them
for their own.
I have seen some of my own photographs show up suddenly in
a magazine, not the one I had originally sold it to or given it
to. I know what that means. I know the thrill when I see my
son-in-law's photographs published, but I know he would not be
as thrilled if the credit was not given either to him or to his
organization.
This situation impacts copyright owners and potential
copyright users in every industry, from an individual
scrapbooker or illustrator to the largest corporation. Senator
Hatch and I asked the Copyright Office to study orphan works
and issue a report on the situation, as well as a suggestion
for possible legislation. The report came out in January. It is
clear that they spent a considerable amount of time, a
tremendous amount of time on that, and I thank them for that.
The multitude of comments, both those made to the Copyright
Office and those made in the subsequent roundtable discussions,
show how committed all the interested parties are to find a
sensible and equitable solution to this conundrum of orphan
works.
So I am glad we are having this opportunity to have this
hearing. I think it opens up a dialog with representatives of
all points of view on this issue. And it is not a uniform point
of view. I am well aware of that, but it is an issue of vital
importance. I think we can all agree on that.
I have no intention of crafting legislation that harms the
creators who hold copyrights and who bring so much value to our
culture and economy. But I would like to see the chance for
social and cultural enrichment by enabling use of these orphan
works by the public. I am afraid that at a time when we are
growing so fast as a country and when there is so much going on
that we miss some things that could really speak to what we are
as a country, or speak to things that will actually enrich our
lives.
So we have a lot of work to do, Mr. Chairman, but if past
is prologue, you and I have been able to work through these
things before and I think we will here.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Hatch. Well, thank you, Senator Leahy. I think we
will.
Let me just say we have a great panel here today to discuss
this issue, and before I introduce them I should note that we
have departed from the more traditional hearing structure by
not having separate panels for the Government and industry
witnesses. We have done this in the hopes that it will allow
for a more lively debate among the witnesses. In particular,
because most of the discussion today will center around the
Copyright Office proposal, I thought it would be appropriate to
have a representative of that Office on the same panel so he
could respond to both positive and negative comment on the
proposal. With that explanation, let me introduce the witnesses
here today.
First, we are going to hear from Jule Sigall, the Associate
Register for Policy and International Affairs at the Copyright
Office. I would like to thank Jule for all of the work the
Office put into the orphan works report that Senator Leahy and
I have requested.
Next, we will hear from Victor Perlman, Managing Director
and General Counsel of the American Society of Media
Photographers. We are grateful to have you here, Mr. Perlman.
Then we will have, after Mr. Perlman, Ms. June Cross, who
is a documentary filmmaker and a professor at Columbia
University. We are grateful to have you with us.
Next, we have Brad Holland, a founding board member of the
Illustrators' Partnership of America. We are grateful to have
all of you here. I will just quit repeating that each time, but
we are grateful to have you here, Mr. Holland.
Senator Leahy. So if we don't say it, we are still
grateful.
Chairman Hatch. Yes, we are still grateful. Repetition
doesn't always bring conviction here.
We will hear, after Mr. Holland, from Ms. Maria Pallante,
Associate General Counsel and Director of Licensing for the
Solomon R. Guggenheim Foundation.
After that, we will receive testimony from Thomas C.
Rubin--good to see you again, Mr. Rubin--Associate General
Counsel for Microsoft Corporation. He has got a tiger by the
tail there in many respects in this area.
Last but not least, we will hear from Rick Prelinger, Board
President of the Internet Archive.
I look forward, and I know Senator Leahy does, to hearing
your testimony, and we want to thank each of you for taking the
time out of your schedules to be with us today. This is an
important hearing and we are really interested in what you have
to say.
So we will start with you, Mr. Sigall.
STATEMENT OF JULE L. SIGALL, ASSOCIATE REGISTER FOR POLICY AND
INTERNATIONAL AFFAIRS, U.S. COPYRIGHT OFFICE, WASHINGTON, D.C.
Mr. Sigall. Thank you, Mr. Chairman.
Chairman Hatch, Senator Leahy and members of the
Subcommittee, I am pleased to appear today on behalf of the
Copyright Office to testify about solving the orphan works
problem. We would like to thank Chairman Hatch and Senator
Leahy for their leadership on this issue and for commissioning
the report on orphan works which we published in January. As
always, we were very pleased to assist the Subcommittee in
resolving important copyright issues.
As you summarized, Mr. Chairman, the term ``orphan works''
describes the situation where someone would like to use a
copyright work, but cannot identify and locate the copyright
owner. Even where the user makes a diligent effort to find the
owner, if the owner is not found, the user faces a dilemma. She
cannot determine whether the owner would permit the use.
Where the proposed use is infringing, the user cannot
reduce the risk of copyright liability because there is always
the possibility that a copyright owner could bring an
infringement action after that use has begun. In this
situation, a productive and beneficial use of the work may be
forestalled, not because the owner has asserted exclusive
rights or because the user and owner cannot agree on the terms
of a license, but merely because the user cannot locate that
owner.
For many users, the risk of infringement liability, even
though remote, is enough to prompt them not to make use of the
work. This outcome is not in the public interest, especially
where the owner no longer exists or otherwise does not care to
restrain the use of his work.
Based on our study of this issue, we concluded the
following. The orphan works problem is real, but it is elusive
to quantify and describe comprehensively. Some orphan works
situations may be addressed by existing law, but many are not,
and legislation is necessary to provide a meaningful solution
to the orphan works problem as we know it today. The report
recommends with specific legislative language an amendment to
the Copyright Act's remedies section.
Our proposal is motivated by two primary goals. First, any
system to deal with orphan works should seek to make it more
likely that a user finds the relevant owner in the first
instance and negotiates a voluntary agreement over the use of
the work. Second, where the user cannot identify and locate the
owner after a reasonably diligent search, then the system
should permit that user to make use of the work, subject to the
provisions that resolve issues that arise if the owner surfaces
after the use has commenced.
Our proposed amendment follows the core concept that many
participants favored an orphan works solution. If the user has
performed a reasonably diligent search but does not locate the
copyright owner, then the remedies for infringement by that
user should be limited. Both our written testimony and the
report go into the specifics of our recommendations, so I will
not spend too much time on those details now. But I would like
to focus my remarks today on the reactions that interested
parties have given to our report.
By and large, that reaction has been quite positive. A
diverse array of copyright owners and users, book publishers,
authors, libraries, archives, museums, motion picture studios,
record companies, educational institutions, documentary
filmmakers and others all agree with our conclusion that the
orphan works issue is real and needs to be addressed, and they
agree with the basic concept and structure of our proposed
legislation. Some of these groups have made constructive
suggestions for changes to the specific provisions and we are
confident that further discussion among the interested parties
can resolve any remaining issues.
Certain groups representing individual copyright owners,
however, such as photographers, illustrators and graphic
artists, oppose our proposal. They argue that many of their
works will be inaccurately labeled orphan works because it is
often difficult to find the owner of a visual image, usually
because the name of the creator is not on copies of the work.
The Copyright Office records are text-based and in most
cases do not contain much, if any, description of the subject
matter of the image, in part because we have eased the
registration requirements for photographers at their request.
So even if a photographer has registered his works, a user may
not be able to locate that owner. In other words, these groups
concede the very problem at the heart of the report. A user
seeking to locate a photographer of an image that has no
identifying information on it faces a daunting challenge.
Our proposal provides safeguards for this problem in a
number of ways. First, in most cases, including all commercial
uses, the user of the orphan work must pay the copyright owner
reasonable compensation if the owner resurfaces. Also, the user
will not be able to continue making use after the owner asserts
his copyright, except in defined circumstances, and even in
that case must pay reasonable compensation for that future use.
So when critics say that our proposal would strip thousands of
photographers and other visual artists of their rights, that is
simply not true.
Photographers claim that bringing a lawsuit to collect
reasonable compensation will be prohibitively expensive. We
agree that legal actions to enforce copyright are expensive,
just as any access to our court system is costly. However, this
problem exists for visual images today, regardless of whether
orphan works legislation is passed or not. Moreover, there are
non-legal actions that photographers and others can take to
protect their copyrights. These steps include consistently
marking copies of their works, development of collective
licensing mechanisms and deploying technology to allow
effective searches where the user has only the image and no
contextual information. Steps like these will also ensure that
visual images are locatable and their works do not become
orphan works.
Regarding the expense of litigation, we noted in the report
that a new small claims procedure might also help individual
owners protect their copyright generally, and also allow to
obtain reasonable compensation if their works fall into the
orphan category. Last week, we offered to study this question
in a report to the Subcommittee on potential solutions to that
problem. However, the key to enhancing copyright protection in
visual images is not increased litigation, but making it easier
for owners and users to find each other, which our orphan works
proposal encourages.
In conclusion, many users, especially cultural institutions
like libraries, museums and archives, made clear that any
orphan works solution must include photographs and other visual
images, given the persistent orphan works problems that exist
with these works. In fact, orphan works legislation may be the
catalyst needed to prompt the non-legal, marketplace reforms
that will most efficiently address the problems identified by
these creators. For this reason and others, Congress should not
delay its consideration and enactment of orphan works
legislation.
Thank you for the opportunity to testify today and I look
forward to answering any questions you might have.
[The prepared statement of Mr. Sigall appears as a
submission for the record.]
Chairman Hatch. Well, thank you, Mr. Sigall.
Mr. Perlman.
STATEMENT OF VICTOR S. PERLMAN, MANAGING DIRECTOR AND GENERAL
COUNSEL, AMERICAN SOCIETY OF MEDIA PHOTOGRAPHERS, INC.,
PHILADELPHIA, PENNSYLVANIA
Mr. Perlman. Mr. Chairman, Ranking Member Leahy,
distinguished members of the Subcommittee, thank you for the
opportunity to present our views. I am speaking today on behalf
of not just the American Society of Media Photographers, but
for virtually every major trade association for freelance
photographers and the Graphic Artists Guild for Commercial
Illustrators and Artists.
We absolutely agree that true orphan works are a legitimate
problem that requires a solution. However, the Copyright
Office's proposal would have the practical effect of converting
the majority of published photographs and illustrations to
orphan works. For photographers and commercial artists, this
proposal is a disaster of biblical proportions. It is based on
at least two fundamental and erroneous assumptions.
One is that registered works will not be orphan works, and
the other is that most copyright owners and authors can be
found through text-based research. Both of those assumptions
are one hundred percent wrong as to visual artworks. Many users
will have in their hands only an image with nothing else to
identify it. The Copyright Office's records are not searchable
by anything but text nor or in the future, and that is not
because of easing the registration requirements for
photographers. That is a fact of the way the system is
structured and will be structured in the future. So if you have
no name, you have no search results.
Most photographs and illustrations are published without
credit, attribution, or other way to identify the creator who,
for freelance photographers and artists, is usually the
copyright owner. There is virtually no attribution on the Web.
In fact, we are told by industry vendors that 90 percent of the
uses of photographs and illustrations on the Web are
unauthorized.
In print media, there are no credits given except for
editorial uses, and that practice is shrinking. Context does
not provide much help because the publishers and advertising
agencies and corporate clients that publish these images have
no incentive to retrieve and provide data when information is
requested. Almost all search capabilities are limited to
textual information. That doesn't help you if all you have is a
copy of an image. Even the newest image recognition software
will work only for digital images that are available on the
Web, and that is a tiny percent of all copyrighted images. The
result of all of this would be a de facto, retroactive
confiscation of copyright for most photographs and
illustrations.
There are other flaws in the Copyright Office's proposal
that are set forth in my prepared statement. I urge the
Subcommittee not to use the Copyright Office's proposed
legislation as the starting point for addressing this problem.
There are other, better proposals suggested in my prepared
statement and also outlined in the Copyright Office's report.
Freelance photographers and artists are small business
people of modest means. In the orphan works context, it is a
case of them against an array of large, powerful organizations
representing many larger, more powerful and more wealthy
corporations and institutions. It is a case not of just David
versus Goliath, but of David versus an army of Goliaths, and
this time, Mr. Chairman, David really needs your help.
Thank you.
[The prepared statement of Mr. Perlman appears as a
submission for the record.]
Chairman Hatch. Thank you, Mr. Perlman.
Ms. Cross.
STATEMENT OF JUNE CROSS, DOCUMENTARY JOURNALIST, AND ASSISTANT
PROFESSOR OF JOURNALISM, COLUMBIA UNIVERSITY, NEW YORK, NEW
YORK
Ms. Cross. Thank you, Senator Hatch and Senator Leahy, for
giving me the opportunity to speak to you today regarding the
Copyright Office's report on how best to protect the rights of
users and owners of so-called orphan works.
The Copyright Office has done a superb job of examining
this issue from every angle and asking for public response.
They have considered the ramifications of the various avenues
that they have proposed. They and you are to be commended for
taking so great an interest in helping copyright holders and
those of us who use them find each other. And I am also a
copyright holder, I should add, so we are all copyright
holders.
We all want to find each other and arrange for fair credit
and fair compensation. We are especially gratified that you
have chosen to explore an issue that many might find arcane,
the issue of how to proceed wisely when faced with work for
which no registered owner can be found. That problem is not
arcane to the majority of the thousands of people whom I
represent here today. We tell stories using collages of
pictures, words and music. We make films and documentaries.
As a producer, I have been making documentaries for some 20
years at PBS' ``Newshour,'' for ``Frontline'' and at CBS News.
Most recently, I have also been teaching at the Graduate School
of Journalism at Columbia University. I depend on copyrights in
my own work to help me earn a living. So does everyone who is
represented by the coalition of groups that I speak for today
and who are listed in my prepared statement.
We are not lavishly endowed studios, but the producers of
independent films, the directors of scarcely funded after-
school programs, and the community access directors are
struggling to give citizens a voice. At a time when more and
more information is available through more means than we can
count, filmmakers find it harder and harder to put a sense of
history and context into their work. Allow me to use as a
worst-case example a film for which I am best known, ``Secret
Daughter,'' a documentary that I did back in 1996, the story of
my own biracial family.
I was born 6 months before the Brown v. Board of Education
decision in 1954. My parents separated when I was 18 months
old, and part of my historical, contextual problem when making
this documentary was how to find footage and stills that would
adequately and accurately present the way the United States
looked and felt at that point in time.
I found in an archive 2 hours of unidentified home movie
footage taken on 125th Street in Harlem outside the Apollo
Theater 1 day in June 1954. The archive was happy to well me
the footage, but they did not know who the original
photographer was and they would not help me find him.
I need to stop now and tell you what would have happened
had I been working for a commercial station instead of at PBS.
At a commercial station, I would have been under much more
intense deadline pressure to find the original owner of that
footage. I would have had to provide evidence that I had
searched through registered data bases, talked to archivists
who are familiar with that particular subset of Harlem film in
the 1950's, find the families of people that I could have
recognized on the street, and asked anyone I might have known
who might have had a movie camera in 1954 to try to find the
person who made this film.
I would have had to document every step of that way,
documenting the e-mails, documenting the phone calls,
documenting the letters. I would have had to show that I
performed what we call due diligence, which is the record of
those documented e-mails, phone calls and letters that we
accumulate over time as we try to find the rightful registered
owners of those copyrights.
Even with that paper trail, I would have had to indemnify
the commercial outlet or distributor that I was working for
after the work was aired. And then in order to protect myself,
I have to get something called errors and omissions insurance.
In today's litigious environment, the insurers are very
reluctant to insure me if I have a piece of work for which I
can find, identify and have written permission from a
registered copyright owner.
In some outlets, even if I have proved that I have done due
diligence, even if the errors and omissions insurer can be
persuaded to take my word for it, the outlet itself will not
air the piece with that piece of footage in it. So it doesn't
matter how much due diligence I do; in some cases, this piece
could not air.
Were the legislative branch to pass a cap on the amount of
damages a found copyright owner could receive, this risk would
be quantified for the insurance companies, because this is what
the problem is: We are all afraid that a copyright owner will
emerge and sue us all for millions. Were there a provision for
me to have a safe harbor by taking that piece of footage out of
my documentary, that would increase the insurance company's
confidence that an expensive settlement might be able to be
avoided. If the distributor could be spared the threat of
injunctive relief, we would all breathe much easier.
As it turned out in the case of the footage that I
described and discovered, that footage on 125th Street in
Harlem, I was able to find finally the original photographer of
that footage. It took me the better part of 3 months, using the
steps that I described earlier. I was able to take that long
because I was working for PBS, but in the commercial arena no
one gets that amount of time to do that kind of research.
That would have been a shame because in the footage that I
found, I found several shots of my father, a man whom I had
never known as a child and whom I only met when I was 30 years
of age. In the shots in 1954, he was holding me when I was
barely 6 months old.
I was lucky, as I have not been on other occasions and as
many others have not been in other situations, to be able to
put together my own history using footage and archive house-
declared orphans. Shot by shot, others bits and pieces of our
history are being lost because of the fear by insurers and the
fear of cable outlets that they will face a lawsuit if so-
called orphan works cannot be identified and the registered
owners can't be found. It means that bits and pieces of our
history are being lost. Future generations will never be able
to know why they didn't see that history. They will just know
that they never saw it and no one will ever know why.
I ask the Committee to consider giving every filmmaker more
of a chance to tell the full story of all of our histories and
have a chance to bring that history forward by considering
deeply the value of the work that the Copyright Office has done
in this regard.
Thank you.
[The prepared statement of Ms. Cross appears as a
submission for the record.]
Chairman Hatch. Thank you, Ms. Cross.
Mr. Holland.
STATEMENT OF BRAD HOLLAND, FOUNDING BOARD MEMBER, ILLUSTRATORS'
PARTNERSHIP OF AMERICA, MARSHFIELD, MASSACHUSETTS
Mr. Holland. Chairman Hatch and Ranking Member Leahy, last
year the Illustrators' Partnership filed a submission with the
orphan works study which was endorsed by 42 national and
international arts organizations representing a broad spectrum
of popular artists; fine artists; medical, scientific and
architectural illustrators; cartoonists; and educators. On
behalf of these artists, I appreciate the opportunity to
address you.
Our chief objection to the orphan works amendment is that
it is not an orphan works amendment. An orphan works amendment
would have applied to old work whose authors have abandoned
their copyrights. This proposal would legalize the infringement
of any work of art, past, present and future, regardless of
age, country or origin, published or unpublished, wherever the
rights-holder cannot be identified or located.
It would permit a user to appropriate the private property
of rights-holders based on the user's own definition of a good-
faith, reasonably diligent search. It would reimpose
formalities by forcing rights-holders to rely on registries,
meta data and notice as a condition of protecting their
copyrights. It would be retroactive, affecting art done over
the last 30 years when artists were told that their work would
have the basic protections of copyright law, whether it was
marked or not.
It would affect illustrations and photographs
disproportionately because trade practice requires that images
routinely be published without identifying information or
because artists' signatures or marks may be illegible, or
because information can be removed by others. It would remove
any meaningful remedies for infringement, which are the only
means that rights-holders now have of enforcing copyright. It
would place an impossible burden of diligence on rights-holders
because they would never have the resources to police
infringement, which can occur anytime, anywhere in the world.
It would interfere with the rights of artists to exploit their
work in commercial markets, which would violate the three-step
test of TRIPs. And it would harm foreign artists by making vast
bodies of their work royalty-free in the United States.
For these reasons and for many others, and with all due
respect, we do not believe the statutory language proposed by
the Copyright Office is a solution to the real orphan works
problem. Instead, it is a blueprint for a radically different
copyright law.
The inability to distinguish between abandoned copyrights
and those whose owners are simply hard to locate is the catch-
22 of the orphan works project. To put it simply, if a picture
is unmarked, it is impossible to source or date it. Therefore,
this amendment would orphan millions of valuable copyrights
that cannot otherwise be distinguished from true orphaned
works, and that would open the door to cultural theft on an
unprecedented scale.
In their submission to the orphan works study, Professors
Jane Ginsburg and Paul Goldstein warned that orphan works
legislation should precisely define the category of orphan
works. The broader the category, they wrote, or the lower the
bar to making requisite showing of due diligence, the greater
the risk of inconsistency with our international obligations,
which in turn reflect longstanding practices that have passed
the test of time.
Many potential users of orphan works have asserted that
these works have little or no commercial value. While this may
be true of real orphaned work, it is not true of the numberless
managed copyrights that would be caught in an orphan works net.
Non-profits organizations which assert that only work of little
or no commercial value will be affected have not documented
their assertions, and other users who wish to exploit work
royalty-free have every incentive to minimize the value of the
work that they would profit from selling access to.
We believe the orphan works problem can be and should be
solved with carefully crafted, specific, limited exemptions. An
exemption could be tailored to solve family photo restoration
and reproduction issues without otherwise gutting artists' and
photographers' copyrights. Usage for genealogy research is
probably already covered by fair use, but it could rate an
exemption if necessary.
Limited exemptions could be designed for documentary
filmmakers. Libraries and archives already have generous
exemptions for their missions, and if their missions are
changing, they should abide by commercial usage of copyright
instead of forcing authors to subsidize their for-profit
ventures.
Therefore, we would respectfully urge this Committee to
consider the negative effects that this proposed statutory
language would have on free-market transactions, and we ask you
to conduct further hearings to resolve this specific problem of
providing public access to true orphaned works.
Thank you.
[The prepared statement of Mr. Holland appears as a
submission for the record.]
Chairman Hatch. Thank you.
Ms. Pallante.
STATEMENT OF MARIA PALLANTE, ASSOCIATE GENERAL COUNSEL AND
DIRECTOR OF LICENSING, THE SOLOMON R. GUGGENHEIM FOUNDATION
(GUGGENHEIM MUSEUM), NEW YORK, NEW YORK
Ms. Pallante. Chairman Hatch, Senator Leahy, thank you for
the invitation to testify on behalf of American museums. In
fact, my comments today reflect the views of 18 non-profit
organizations in the cultural and educational sectors, which in
turn represent a combined 145,000 museums, libraries,
universities and archives, more than 135,000 independent
historians, educators and scholars, all of whom want to make
productive use of orphan materials in conjunction with their
missions.
We applaud the Copyright Office for its tremendous
contribution to the copyright community in producing the report
on orphan works. Although the report addresses many complex
issues, including the need to include unpublished works, the
need to provide a flexible work standard, the need to
distinguish between commercial and non-commercial uses, we
believe the Office got things fundamentally right. On the few
points where we have concerns, we are extremely optimistic that
clarifications can be made and that consensus can be reached
with the other parties.
The importance of orphan works relief to our communities
cannot be understated. We have in our possession millions of
orphans, from personal photographs of ocean voyages, to
documentation of historical artifacts, to letters of Holocaust
victims. The Copyright Office approach, with certain
clarifications and modifications, has the power to directly
affect the intellectual, historical and cultural life of all
Americans.
It will improve the work of individual artists, writers,
filmmakers, as well as scholars, historians, librarians,
archivists and curators, who everyday struggle to balance the
rights of missing or unidentifiable copyright-holders with the
mission of making these letters, manuscripts, photographs and
other culturally significant material available to the public.
I would like to turn now to some recommendations that we
believe are necessary to make the legislation truly responsive
not only to the museum community and other users, but to the
public. I will make just three points.
First, we believe the statutory language should define
reasonable compensation. Reasonable compensation is a flexible
formula that has not received extensive interpretation in case
law, and to be honest it was not the first choice of museums.
We wanted a safe harbor, a clear exemption; we wanted
certainty. Nor was it the choice of many other users in the
educational sector. Most wanted a clear cap on damages, a cap
as to potential liability, certainty.
This said, we are willing to support the concept if it is
defined in the statute and if clear examples are provided in
the legislative history, including illustrations where the user
is a non-profit institution or an independent scholar, and
reasonable compensation is typically zero compensation. Indeed,
it is not uncommon for the decision to use a particular work to
turn on whether it is available for free.
Second, in its recommended statutory language, the
Copyright Office has proposed a safe harbor from all monetary
relief in certain limited instances where the use is made
without any purpose of direct or indirect commercial advantage.
This phrase is well-intended by the Office and it has been well
received by us, but we think it requires clarification.
For example, organizing and publishing books is a core
educational function of museums. It is no different than our
function of organizing and presenting exhibitions. Publication
of books furthers our central non-profit mission of education.
In many cases, it is the only practical means by which we make
our collections accessible to the public. The fact that we sell
books does not make the sale for purposes of commercial
advantage. We sell them for the same reason we charge admission
fees, to defray the cost of operation and production. Our
publications departments are cost recovery operations.
In truth, we do not even break even on our books. We do not
recovered the many fixed costs--the salaries of our curatorial
and editorial staffs, the cost of the exhibitions, the cost of
the collections on which the exhibitions are based. We need
confirmation that the creation and sale of mission-related
publications are uses that are undertaken without any purpose
of direct or indirect commercial advantage. On a related point,
though independent scholars may sometimes earn royalties, this
does not make scholarship a commercial activity.
Third, because orphan works will often, perhaps most often
be incorporated into other works of authorship, we would like
to see language that more clearly defines the circumstances
under which a user may avoid an injunction in cases of books,
films, artworks and websites. A user may well decide to
incorporate the orphan work based on having determined that
there was no rights-holder. If the copyright owner later
emerges and sues for infringement, an injunction would be
disastrous for the user and the public. In our view, the right
approach here is to allow the use to continue, but to require
the user to pay the owner reasonable compensation.
In closing, we do recognize that orphan works is a
complicated undertaking, but in our view an orphan works
amendment has one ultimate goal. It should help to make
cultural heritage more broadly available to the public. It must
give users the confidence necessary to take works out of
obscurity and to expend the resources to make them newly
available. We believe this legislation is achievable, and on
behalf of all American museums and our colleagues in the
cultural and educational sector, we thank you for your
leadership in making it happen.
[The prepared statement of Ms. Pallante appears as a
submission for the record.]
Chairman Hatch. Well, thank you so much.
Mr. Rubin, we are pleased to have you here.
STATEMENT OF THOMAS C. RUBIN, ASSOCIATE GENERAL COUNSEL,
MICROSOFT CORPORATION, REDMOND, WASHINGTON
Mr. Rubin. Chairman Hatch, Senator Leahy, my name is Tom
Rubin and I am Associate General Counsel for Copyrights,
Trademarks and Trade Secrets at Microsoft Corporation. Thank
you for providing Microsoft the opportunity to testify
regarding possible legislative solutions to the issue of orphan
works. We commend the Subcommittee for convening this hearing
and thank Chairman Hatch and Senator Leahy for requesting the
Copyright Office's detailed study and analysis.
Microsoft is the leading provider of software services and
solutions used by hundreds of millions of consumers and
businesses worldwide. We are a creator of valuable copyrighted
works such as Windows and Office, as well as a user of
copyrighted works created by others. For example, our
interactive encyclopedia Encarta and our online service MSN
contain both original and third-party content. Although we
clear rights to any third-party content that appears in our
products, we occasionally have run into difficulties locating
the owners of works we wish to include.
Microsoft's interests in the orphan works issue thus
coincide with those of both authors and users. We therefore
support a balanced solution to the orphan works problem, one
that respects the exclusive rights of creators while advancing
the public's interest in obtaining broad access to works.
While there are several possible approaches to the policy
issues raised by orphan works, the approach set out in the
Copyright Office report is a promising start. As an initial
matter, we believe that addressing the orphan works problem
through a limitation on remedies offers a reasonable approach,
one reflected elsewhere in the Copyright Act for promoting the
dissemination of works while safeguarding the rights of
copyright owners. We believe this approach is far preferable to
one such as a registration system or similar regime that would
impose formalities or other burdens on authors and the
Copyright Office alike.
It is also preferable to a compulsory or other government-
administered licensing or royalty scheme which could become
mired in bureaucratic overhead while denying authors fair
compensation for their works. A compulsory license is
particularly inappropriate for the orphan works problem because
if the work is a true orphan, there would be no one to receive
the compulsory license fee. And if, by contrast, the work
proves not to be an orphan, compensation to the copyright owner
should match prevailing market-based royalty rates for the
work.
We also believe that a use-based registration system in
which users would enjoy limited liability simply by filing a
notice with the Copyright Office before using a work would be
unfair to authors, inefficient and difficult to implement.
With respect to the specifics of the Copyright Office's
proposed legislation, we support the use of a good-faith
reasonableness standard for evaluating whether a user has
conducted a sufficiently diligent search to locate a work's
owner. Given authors' exclusive rights to decide whether and
how to make their works available to the public, it is vital
that the proposed limitations on remedies be available only to
users who have undertaken objectively reasonable and truly
good-faith efforts to locate the work's owner. Merely
perfunctory searches should never qualify for the limitation on
remedies.
The nature of what constitutes a sufficiently diligent
search is likely to vary considerably, depending upon a variety
of factors. Given the fact-specific nature of the inquiry, we
appreciate the difficulty of establishing specific statutory
criteria for what constitutes a good-faith, reasonably diligent
search. At the same time, we consider it essential that this
standard not be interpreted in a manner that would weaken the
ability of copyright owners to protect their works against
misappropriation. We therefore support the ongoing efforts of
various stakeholders to explore what might constitute a
reasonably diligent search in various contexts.
In those cases where a copyright owner is entitled only to
reasonable compensation for the use of her work, we support the
notion that this amount should represent the amount the user
would have paid to the owner had they engaged in negotiations
before the infringing use commenced. Given its importance,
clarifying this standard in the legislative text, in our view,
would be useful.
In closing, I would like to emphasize the beneficial role
that technology, and in particular software, can play in
helping address the orphan works problem. As the Copyright
Office report observes, any system to deal with orphan works
should seek primarily to make it more likely that a user can
find the relevant owner in the first instance. Technologies
already exist that make it easy for authors to embed rights
management information into their digital works and for users
to locate and read this information.
As search technologies continue to improve--an area in
which Microsoft is devoting substantial resources--the ability
of users to locate copyright owners should likewise improve,
thereby decreasing the number of cases in which a work is
incorrectly considered an orphan.
Thank you once again for inviting Microsoft to testify at
today's hearing. We commend the Subcommittee for giving its
attention to the orphan works issue and we look forward to
working with the Subcommittee as it shapes and advances
legislation in this area.
[The prepared statement of Mr. Rubin appears as a
submission for the record.]
Chairman Hatch. Thank you, Mr. Rubin.
Mr. Prelinger.
STATEMENT OF RICK PRELINGER, BOARD PRESIDENT, INTERNET ARCHIVE,
SAN FRANCISCO, CALIFORNIA
Mr. Prelinger. Thank you, Mr. Chairman, for the privilege
of addressing the Subcommittee today. I would like to begin by
thanking you and the Ranking Member for your leadership in
addressing the orphan works situation. The process that you
have started has awakened broad public interest and we are very
excited to see this problem being so actively and thoughtfully
addressed.
I come to you today wearing two hats. First, as Board
President of the Internet Archive, I would like to say a few
words about our activities, especially our project to digitize
the contents of America's great libraries and build an open
digital library available to all. My second, and considerably
smaller-size hat is as founder of Prelinger Archives, a small
commercial film archive that specializes in historical footage
of American life, culture and industry. I would like to talk
about why clarifying the orphan works situation is especially
critical for films.
So, first, the Internet Archive. We are a non-profit
library that has collected billions of works and served
millions of users since 1996. We collect books, music, moving
images, Web pages and software programs. We work with the
Library of Congress, the National Archives, the National
Archives of the UK and many other institutions to find workable
solutions to libraries' and archives' missions in the digital
world.
Last October, we announced the formation of the Open
Content Alliance, in partnership with five major technology
companies and over 50 research and public libraries holding
over 150 million books. The alliance seeks to digitize the
holdings of key libraries and build a great joint collection
online. Our members have all agreed to make their holdings
openly available to all users, subject, of course, to the
limitations of copyright law.
We believe that there are many hundreds of thousands,
perhaps millions of orphan works which, if digitized and made
available to all, would vastly add to our public storehouse of
knowledge. We hope that we and our partners will be able to
digitize and provide access to these books for non-commercial
public purposes without fear of liability. Toward this end, we
strongly support the Copyright Office's suggestion regarding
limitation on remedies for non-commercial use and we advocate a
simple request and removal procedure for libraries and archives
that would respect the rights of copyright owners who come
forward.
Let me switch hats and say a quick word about the Prelinger
Archives. Most of our collection actually came here to the
Library of Congress in 2002, but we are still collecting
historical film, especially industrial advertising films and
home movies. These are vivid documents of everyday life showing
our country and its people as they actually were, quite unlike
Hollywood films or TV shows.
Our footage is in very high demand and we have made a
business out of licensing stock footage. Most of our films are,
in fact, orphan works because most small film producers are no
longer in business. Contemporary audiences are fascinated by
historical films. I recall the thrill of an audience in
Britton, South Dakota, when I showed them Depression-era home
movies from their own town. This coming August, archivists and
members of the public will gather in at least 24 States to
celebrate Home Movie Day, watch family films and select
historically valuable items for preservation. We ourselves have
put 2,000 of our own films online for free, and some 5 million
have been downloaded.
Film is a peculiar creature in that it is quite fragile. It
often decomposes more quickly than copyrights do. We therefore
face a critical dilemma when it comes to preserving films. Non-
profit archives like Northeast Historic Film and organizations
like the National Film Preservation Foundation--by the way, I
would like to thank you for your work in reauthorizing the
National Film Preservation Board, the foundation's parent--need
assurance that they can intervene to rescue deteriorating films
without fear of liability. Small businesses like ours whose
budgets are at non-profit levels also need to know that they
can recover the costs of preservation through commercial
licensing.
I am a member of the baby-boom generation. Much of my
generation's history has passed into the public domain, but
because of the peculiarities of copyright law, many of my
younger friends lack the freedom to freely quote or reproduce
key works from their own era. Easing access to orphan works
would go a long way toward addressing this generational
inequity.
I thank the Subcommittee for its attention and I look
forward to answering any questions.
[The prepared statement of Mr. Prelinger appears as a
submission for the record.]
Chairman Hatch. Well, thank you. This has been very
interesting to me. I have to say a lot of people think it is a
seemingly small issue, but it a whole raft of issues that are
very complex and very interesting.
Conceptually, there appears to be at least three different
proposals to address the orphan works problem, and I would just
like to get the panel's view--and we will start with you, Mr.
Sigall, from left to right--on the relative merits of each of
these three approaches.
First, there is the Copyright Office proposal which simply
limits the remedies available if an alleged infringer can
demonstrate that he or she performed a good-faith, reasonably
diligent search for the copyright owner prior to using the
copyrighted work. Now, this is perhaps the simplest solution
and it minimizes the ongoing involvement of the Copyright
Office and other governmental entities in resolving disputes
over orphan works.
Second, some have suggested the creation of a new statutory
license that would impose the duty on a potential licensee to
perform a more specific type of search and pay a statutory
royalty before using any orphan work. If an owner of a work
that was used subsequently emerged, he or she could then make a
claim against the royalty pool and receive payment for the use
of the work. Obviously, this proposal would require more
involvement by the Copyright Office in terms of administering
the license and distributing royalty payments.
Third, some have proposed instituting something similar to
the renewal requirement that existed prior to our accession to
the Berne Convention. Under this proposal, copyright holders
would be required to comply with a formal review process that
would be similar to registration in order to enjoy continued
copyright protection near the end of the current copyright
term. Now, as I understand it, to remain in compliance with our
treaty obligations, we would have to limit such renewal
formality just to U.S. copyright owners.
I think both of us would be interested in hearing from each
witness about the relative merits and potential problems with
each of these options, and we will start with you, Mr. Sigall.
Mr. Sigall. Well, I will address the second and third
options. We are fond of the Copyright Office proposal, as you
might expect.
With respect to statutory license or a system where a user
would have to both do a diligence search and pay into a fund
that could be distributed to resurfacing copyright owners, we
addressed that a little bit in our report. The main, I think,
objection to that proposal where it is flawed in this context
is that if most of us agree that most reasonably diligent
searches will find owners, and those that don't truly are
orphan work situations, you are setting up a system where
people are paying into a fund where there is no owner to come
back and collect the funds.
So you would have to set up a bureaucracy, as you
mentioned, in the Copyright Office to collect the money. But in
almost every case, maybe upwards of 95 to 99 percent of the
time, that money doesn't get distributed to a copyright owner.
It just sits there. It either goes back to the user in an
inefficient way or gets distributed somewhere else.
This is not like the situation in other circumstances where
a statutory license has been implemented where you know where
copyright owners are and where the moneys can be distributed
more efficiently. So we don't think that is the most efficient
or effective way to address the problem with respect to orphan
works because we think in most cases there will be no owner who
resurfaces. So let's not set up a system to address a problem
that won't actually arise in practice for the most part.
With respect to questions of a renewal requirement or an
additional formality that might be imposed on copyright owners
to maintain their copyright, in essence, as you mentioned, that
raises the real potential of violation with our international
obligations and the general prohibition against such
formalities.
As a practical matter, we have experience with that kind of
system under our old 1909 copyright law and the experience from
that time is that those burdens, the burden of renewal and the
burden of filing maintenance of your copyright, fall most
heavily on individual copyright owners, like photographers and
illustrators that are here today. And they end up being more a
trap for the unwary than they do actually help solve the
problem of getting copyright owners and users together.
The other thing I think that is the flaw in those types of
systems is they offer what I would call the illusion of
certainty. There is a feeling that if there is a piece of paper
that people can go find in the Copyright Office or somewhere
that you will know who the owner is and resolve a lot of the
questions. You may in several cases, but what you end up having
is what we had under the 1909 Act. You end up having litigation
over arcane definitions about when something was published or
what exactly the piece of paper in the Copyright Office covers,
instead of having more appropriate questions of what the person
did to find the copyright owner and how much the copyright
owner made themselves available.
So we think both in legal terms and in practical terms, a
registration and renewal requirement really doesn't help solve
the problem that we are trying to solve in the orphan works
situation.
Chairman Hatch. Mr. Perlman, my time is up, so if you could
answer in short verse, I would appreciate it.
Mr. Perlman. Like Jule, I won't comment on the orphan works
proposal from the Copyright Office, but for the reason that I
dislike it as much as he likes it.
The statutory license or something similar is already
working in the music world. I think that that seems to be at
least a good starting point for an approach. Jule doesn't like
it because it is inefficient. I think inefficiency is better
than confiscation.
The renewal requirement, I believe, would not really help
users of images because whether it is registered or renewed,
the user simply can't find the information the way the
Copyright Office's records are currently searchable.
Chairman Hatch. Ms. Cross.
Ms. Cross. I think we would tend to side with Mr. Sigall on
the Copyright Office's proposal. PBS actually does use a
version of a statutory royalty. We call it an escrow account.
It might be something that is worth looking at if you choose to
explore that.
I think where we stand generally is that we are in favor of
some kind of cap on whatever amount would be charged should an
orphan work registered owner emerge and stretching the take-
down provisions to include we who make films.
Chairman Hatch. Mr. Holland.
Mr. Holland. Well, briefly, the problem, I think, with a
renewal requirement is it would create massive amounts of
paperwork that would just--if you are photographer, you take
hundreds of thousands of images that you have to start tracking
and renewing. You are going to be swamped with paperwork.
Artists and photographers would simply have to put on extra
staff just to handle the renewals.
I would agree with Vic that inefficiency is better than
confiscation, and I would think that the problem with
formalities is that the Copyright Office proposal already
imposes formalities. It just doesn't say so, but it does so by
penalizing artists who don't impose formalities on themselves.
Chairman Hatch. Ms. Pallante.
Ms. Pallante. We support the Copyright Office proposal
because it is the only one, in our view, that addresses the
need to give us some confidence to get things out of obscurity.
It gives us a framework where we can look at millions of
photographs and unpublished letters, and figure out how to
invest in those and put them out in new formats available to
the public in a way that is meaningful without the fear that at
any point in the future somebody will come along and slam us
with a lawsuit for an amount of money that we just can't
handle.
So the practical respect of the other two proposals is that
we just won't use that material and that is what is happening
now. The reason we like the Copyright Office proposal is
because it is fresh and innovative and would get us thinking
about how we can make that stuff available, especially given
the Internet and digital technology.
Chairman Hatch. Well, thank you.
Mr. Rubin.
Mr. Rubin. We believe that the Copyright Office approach is
an elegant approach to the competing concerns that are raised
by the orphan works issue. The problem with the statutory
license is that the best remedy is one that would approximate
what the parties would have agreed to, given the work that is
at issue. Coming up with a statutory fee will likely be either
too little or too much, given whatever the work is. It will
also create enormous overhead. And as Mr. Sigall said, in the
vast majority of situations, particularly as time goes on and
technology improves, there will be fewer true orphan works out
there. So a whole structure will be set up with little benefit.
As for new formalities, those, too, would lead to
tremendous overhead. It would create an inappropriate disparity
between U.S. and foreign works, and it doesn't particularly or
directly address the problem at issue.
Chairman Hatch. Thank you.
Mr. Prelinger.
Mr. Prelinger. We believe that the Copyright Office
proposal is thoughtful and takes these competing interests into
account. Archives have two primary missions--preservation and
access--and in the digital world both of these functions are
handled on a scale that we haven't seen before. The Internet
Archive, for example, has 55 billion Web pages, and we think
that the framework that is advanced by the Copyright Office
comprehends this new direction and will allow digital archives
to function fruitfully.
Chairman Hatch. Thank you.
Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman. I am finding it
interesting, obviously. The reason for this panel is there is
not uniformity of opinion.
Mr. Sigall, let me first go to you. As I said, I appreciate
the report and all the work your office did and I think that
work was very, very helpful. But you have said photographers
have objected to the proposed legislation because of the high
cost of litigation, but then you say that already exists today.
Of course, it does, but what also already exists is the
possibility that the infringer, especially if he has a unique
photograph, might have to pay a lot of money to the
photographer. The orphan bill takes that away, so then the
infringer becomes more emboldened and a lawyer is certainly
much less apt to take it on a contingency basis.
How about changing the bill to permit attorney's fees and
costs and statutory damages if you have a case where an
infringer couldn't show that he had reasonably sought to find
the owner?
Mr. Sigall. Well, that solution is a potential avenue to
explore to address the situations where the user is truly
intransigent and truly does not want to negotiate with the
photographer or other copyright owner who resurfaces over what
the reasonable compensation might be.
Senator Leahy. It would also cover the case where they
didn't do a reasonably diligent search because they didn't want
to find the photographer, for example.
Mr. Sigall. The difficulty that that proposal would raise
is that what we heard from many in the user community is it is
the prospect of statutory damages and attorneys' fees which is
the major obstacle to them being able to use the work. So to
the extent any proposed change to our proposal reintroduces
that uncertainty, they might be concerned that no matter what
they try to do, somebody down the road will say it wasn't
enough or it wasn't an effort to find the owner. And then they
are faced back with the same uncertainty that they have under
the current system, which is always the possibility, even
though it may be remote, of a statutory damages or attorneys'
fees award against them.
And keep in mind that under the current system those
remedies are only available if the photographer has, in fact,
registered their work in advance of the infringement, or any
copyright owner has registered their work in advance of the
infringement.
So to the extent there is any consideration of
reintroducing some of those remedies back into an orphan works
system, it would have to apply only in a situation where the
photographer or illustrator has done that in advance of the
infringement. It shouldn't give them those remedies back.
Senator Leahy. Well, what about a situation like this:
Somebody takes a photograph today and the person sees it and
says you can't use that? We had this happen recently on a book
that is now currently on the bestseller list. I got one of the
first copies that came out before they realized that. Then in
the hundreds of thousands printed after that first run, they
had to change the cover. That is easy. They said you can't use
it. It stopped, and I assume they negotiate for what has been
used.
But what if you have a case where, say, a singer sings a
song and then it is used in a way they never expected, never
could have anticipated, in a pornographic movie, for example?
Now, they feel they really are damaged because if they get
associated with that, it may well change where they can get
concert fees, and so on. Or it is used in a way that would
obviously cause great embarrassment to them because of their
religion, their background, their family, or whatever.
Reasonable compensation, as we might define it, is kind of
cold comfort, isn't it? Don't you have to have some way to
handle something like that?
Mr. Sigall. Well, under our proposal, the limitations on
remedies don't come into play if the owner can be found through
a reasonably diligent search. So if a songwriter, for example,
has their song, if they are registered with ASCAP or BMI or the
Harry Fox Agency or any of the various clearinghouses and other
information sources, I think it would be the very, very rare
case that that would be considered an orphan work. So they
would be entitled to the full remedies that the Copyright Act
affords them right now. Even under our proposal, the
availability of injunctive relief is possible if the work is
simply republished.
Senator Leahy. In an Internet age, injunctive relief isn't
a great deal of comfort, is it?
Mr. Sigall. Well, it is not, but again that is----
Senator Leahy. I have taken several photographs here which
I could have--I am not going to; I have my own collection, but
they could be on dozens of websites before you are home for
dinner tonight.
Mr. Sigall. That is true, and that is a problem that is
generally applicable to copyright.
Senator Leahy. You look very good in the photographs. You
don't have to worry.
Mr. Sigall. That is true, and I think one of our
suggestions that we made in the report and we have repeated is
trying to develop ways for more efficient enforcement
mechanisms that are less expensive and able to address
infringement in a quicker way than with respect to Federal
court litigation.
Senator Leahy. Well, Mr. Perlman suggested some kind of an
alternative dispute resolution; I guess a small claims court or
something like that. Am I stating your position correctly, Mr.
Perlman, to handle orphan works issues?
Mr. Perlman. I had several alternative proposals.
Certainly, some sort of expedited handling of disputes relating
to orphan works and copyrights generally would be a vast
improvement over what we currently have. I think that having
some sort of a licensing organization that would escrow funds
would be preferable to that. Obviously, a lot of user
communities don't like that because that means that they would
have to pay for things that they want to use for free.
Senator Leahy. I just realized the clock, Mr. Chairman. I
am over my time.
Chairman Hatch. You are fine. Go ahead.
Senator Leahy. You have two kinds of photographs here, as I
see it: what I just took here, these digital photographs, which
I have found as a result of which I will probably be able to
contribute to my grandchildren's college funds because I won't
have to pay so much for film that I would be spending
otherwise. So those are easy to send over the Internet, but
then you have got those of historical interest that you might
find in an old family Bible or in a closet, attic or something
like that. It would seem that those would be more apt to be
orphaned, whereas with the more recent digital ones you could
find the owner.
Am I wrong, or should there be any difference in the
treatment of them?
Mr. Perlman. I think that at least as of the state-of-the-
art today, you are probably not correct because some 90 percent
of the images that appear on the Internet right now are
unauthorized. They obviously have no way of tracking the
author.
One of the inherent problems, whether we are talking about
print media or electronic media, is that at least for
commercial photographs the publisher--and I use that term in
the copyright sense--has total control over what information is
available. Most of the time, they choose not to give any
attribution to the copyright holder and creator.
Worse, the user community as a whole has a vested interest
in not disclosing that information because it then creates a
pool of orphan works from which the other users can then take
works without any compensation with, at most, the risk of
having to pay a reasonable licensing fee.
Senator Leahy. In a digital age, what about the creative
community setting up their own digital data banks? Wouldn't
that make it a lot easier to match up an appropriate use?
Mr. Perlman. Absolutely, sir.
Senator Leahy. That would make it more difficult for
somebody to say I did a reasonable search and I couldn't find
the person.
Mr. Perlman. Absolutely. We are currently working with
technology providers to use image recognition software to
create data bases that would absolutely be usable. But as you
pointed out at the beginning of your questions, that would work
for the current pool and future pool of digital images. It does
not begin to address the 50 or 70 or more years of photographs
that are currently under copyright that are in print media. And
the cost and difficulty of taking these millions, perhaps
billions of images and turning them into digital files is
astonishing.
Senator Leahy. Well, I am thinking, and it is sort of based
on something Ms. Cross--and incidentally we are honored to have
you here, with the work you do.
Ms. Cross. Thank you.
Senator Leahy. Putting these kinds of films together must
be fascinating and it must be frustrating at the same time.
What you said about seeing photographs related to your own life
must have been almost overwhelming. I had somewhat of a similar
feeling after my parents died, going through some of their old
photographs and realizing who some of the people were.
If we had a real--and maybe I should ask this of all of
you--a real orphan works bill, do you envision companies coming
up or groups coming up to do data banks and that if a filmmaker
like you went to that data bank and said here is a picture I
want to use that that would be considered a reasonable search?
Ms. Cross. No.
Senator Leahy. No?
Ms. Cross. No.
Senator Leahy. What would you want?
Ms. Cross. I have a fairly rigorous standard that I
instruct all of my researchers to follow and it does not
include one-stop shopping. I mean, even if there was a visual
registry, I wouldn't trust a visual registry because I don't
trust anything that is on the Internet. So I mean I would want
to try to find whoever that picture was supposedly taken by,
ask them did they, in fact, take it and send them a photocopy
of it.
If I can't find that person through a data base, I am going
to try to find out who were the other photographers that were
present at the particular event. If I can't figure that out, I
will begin to start calling people that I know were present at
the event and who did they know that was there. It is really a
sleuthing--it is a detective expedition that we go on.
The impact of an orphan works bill wouldn't be that I would
do less of that, because I am still going to want to make sure
that I am not opening myself up to litigation. I am going to
want to still document. It would just make it easier for me to
use things that otherwise cable companies and even PBS now in
some cases are saying, no, we don't want to take the risk. We
don't know who this is. We don't care that you can document
making phone calls and sending e-mails two or three times a
week for the better part of 6 weeks or two months. We still
don't want to take the risk.
As a result of that, there are things--and I am not talking
about the photographers that work for Magnum or Getty Images.
Those guys, they are documented, but the history of this
country that is documented by mom and pop and home movies is
not by and large documented within the archives of Magnum and
Getty, and that is when we need help.
Senator Leahy. I just put together a photo show in Vermont,
and all the photographs were mine except for two and I spent a
lot of time and my staff spent a lot of time making sure that
we had the permission of the two people who took those, even
though there was no commercial involvement at all. It was at my
alma mater and I wanted to use the two pictures because they
were thematic to it, but I wasn't going anywhere with them
unless we had permission.
Mr. Prelinger, you talked about digitizing orphan works for
the public good and I am thinking about what Professor Cross
just said. Would you feel comfortable using an orphan work
under the proposed legislation?
Mr. Prelinger. In many cases, if we are talking about
digitizing books or published moving images, it is a little bit
easier because there are a number of tools that we can use
either to locate an author or copyright holder or rule out that
such an entity really exists.
I think where it gets more complicated and what a lot of
this discussion has been are unpublished works or works that
are not attributed upon publication, such as an anonymous
illustration. I would like to suggest that the attribution
requirement that the Copyright Office is suggesting in its
proposal goes a long way toward making sure that that work, if
it is reused again as an orphan work, is identified and so
there is the potential for the owner to come forward.
Senator Leahy. I think we have got a lot of work ahead of
us, Mr. Chairman, on this issue, but I think it is an extremely
important one. On the one hand, Professor Cross has said you
want to work very hard, but then you want a film where these
things may be integral to the film, just as a book or something
else.
I think of writers of a history book, how extraordinarily
important that is. I mean, the photographs or a written letter
or a facsimile of a contemporaneous account--how much that adds
to the interest or verisimilitude of the book itself.
So on the one hand, I want to make sure that a writer, a
documentary filmmaker or somebody else is not so gunshy they
can't use these things which will make the final product more
realistic. On the other hand, I don't want a situation where
somebody can say, hey, I have got a great picture. Does anybody
know where this comes from? You don't? OK, I can use it. And
somebody who has worked extremely hard to get that picture or
discover that letter isn't recompensed.
Mr. Chairman, I think we have a lot of work ahead of us on
this.
Chairman Hatch. Well, I think we do.
Senator Leahy. Thank you.
Chairman Hatch. It is certainly an interesting area.
Let me just ask one last question of Mr. Rubin and Mr.
Prelinger. I would be interested in hearing your thoughts about
the relevance of a solution to the orphan works problem now
that it has been raised to the world of the Internet.
Let me ask you this: What type of impact would you foresee
this having on the availability and diversity of online
content? Let me go a little further than that. What types of
things are not possible now that might emerge if orphan works
were made more available?
I would also be happy to hear from other witnesses about
the impact of Internet distribution and its relevance to this
debate after first hearing from you, Mr. Rubin, and then Mr.
Prelinger.
Mr. Rubin. I think that, if enacted, there is likely to be
greater uses on the Internet of a wider variety of historical
images and works. One of the, of course, benefits, as well, of
Internet use--while it has a downside in terms of the ability
for infringing works to be propagated on the Internet, one of
the benefits is to the extent an orphan work or what was
mistakenly identified as an orphan work appears on the Internet
and it turns out that it is not an orphan work, the damages can
easily be mitigated and the work can be taken down. That is not
to say there shouldn't be a remedy in that situation, but I
believe that there would be greater accessibility to a wider
diversity of works if the bill is enacted.
Senator Hatch. Mr. Prelinger.
Mr. Prelinger. We think that if this legislation were
enacted in substantially similar form to what we are seeing now
that it would have a tremendous impact on the amount of
cultural material that was widely available, and also on the
reuse. Public authorship, whether it is scrapbooking or public
television, really all along that spectrum we think would be
tremendously helped.
It does raise some questions. It would mean that libraries
and archives that are collecting digitally would probably need
to be able to make digital copies of orphan works for
preservation purposes. That is a complex issue. Also, many of
the documents that we collect at the Internet Archive are
ephemeral and transient. They are Web pages that come and go
very, very quickly.
We have remedies, you know, the notice and take-down right
now that is supplied by DMCA which is a very nice paradigm that
we hope will be followed. In addition, there are technical
means by which somebody can say don't collect my Web page. They
can put a robot exclusion into effect, and that has been
working very, very well. For example, we don't collect the New
York Times because the New York Times has an automatic
exclusion there. So we can't save those pages. So to some
extent this has been anticipated. We don't think the problems
are insurmountable and we think the opportunities are great.
Chairman Hatch. Thank you.
Does anybody else care to comment?
Ms. Pallante. I would like to comment on that. I think for
the museum and archive world, the impact would be tremendous. I
couldn't agree more. I think if the Copyright Office proposal
were to pass with just some minor modifications along the lines
that we have suggested in our written statement, you will see
in a very short time incredibly interesting and historically
important and culturally significant materials put out in new
formats--websites, books, scholarly journals. It would be
tremendous.
Mr. Holland. Could I comment? If something goes on the
Internet, Senator Leahy said a few minutes ago that injunctive
relief is cold comfort if something is put on the Internet.
Once something is put on the Internet, it has been laundered
throughout the world. I know of a painting of mine that is
being infringed in Iran at this moment and there is not very
much I can do about that.
If the Copyright Office proposal goes through--it is not
this isn't happening already. Right now, it is called piracy.
If the Copyright Office proposal is accepted, it is no longer
piracy. It is a form of using orphan works. My picture in Iran
right now is an orphan picture. Somebody is using it on their
website. It is an orphan work because it is not attributed to
me, and it creates a family tree of infringements because
anybody who sees that unattributed is now able to pick that up
and use it again.
Chairman Hatch. Sure.
Ms. Cross. I think we should make a distinction between
piracy and orphan works. I mean, that is not an orphan work.
Somebody stole your work.
Mr. Holland. But once that person has taken it, it is
unattributed. On his site, it is an orphan because there is no
attribution.
Ms. Cross. But we know how to find the owner.
Mr. Holland. No, I don't.
Ms. Cross. You are findable, you are findable.
Mr. Holland. He is in Iran.
Ms. Cross. No. I am saying the person--I don't mean to
start a direct conversation.
Mr. Holland. I apologize.
Ms. Cross. There is a distinction between stealing
somebody's work and being able to find, if someone tried to
find the person, and an actual orphan work. I think this would
give great confidence to a lot of insurers and to a lot of
commercial outlets now which refuse to allow a lot of materials
to be used because we just don't know what they are.
Mr. Perlman. To give an example of the potential inequity
of this proposal, there are already companies and individuals
who have registered domain names using variations of the term
orphan works with the plan of creating data bases of images
that they could then turn around, and since they don't own the
copyright, license them, but instead allow people for a fee to
come in and access the data base and use the images, thereby
converting orphan works into a commercial windfall at the
expense of the illustrators and photographers.
Chairman Hatch. Well, under this proposal, though, you have
a remedy anyway.
Go ahead, Mr. Sigall.
Mr. Sigall. Let me also say none of this kicks in until the
person does a reasonably diligent effort to find the owner and
if the person in Iran or anywhere doesn't make any effort to
find Mr. Holland, this doesn't apply. And to the extent that
there are companies that might be planning to make a business
out of this, to the extent they do a reasonably diligent search
they still have to pay reasonable compensation to the owners.
And at that point, the owners are surfacing. They can make
themselves known to other users so that those users can't claim
benefit of the orphan works proposal as well.
Chairman Hatch. Let me make a suggestion to you, Mr.
Sigall, and other people there at the Copyright Office. Why
don't you prepare what you consider to be a list of things that
must be undertaken before it could constitute due diligence so
people would know what they really should be doing?
Now, that is hard to do, and it is hard to do right, I
understand, but at least it would be wonderful if we had some
sort of a list of suggestions as to what would constitute due
diligence in the eyes of the Copyright Office, and therefore
maybe in the eyes of everybody. But if you would do that, I
think that would be helpful.
Mr. Sigall. We would be happy to undertake that, but the
problem is we would like to hear from people who do searches,
like Ms. Cross or other people who use these works.
Chairman Hatch. Well, sure, you would want to consult with
Ms. Cross and others.
Mr. Sigall. Those folks have the expertise. Depending on
the sector in which they are working, they know where the
resources are and how to do things like that.
Chairman Hatch. It seems to me you could be helpful to us
here if we could come up with what would be at least minimal
requisites for due diligence in looking for these things. Now,
I know that there are an awful lot of products here, an awful
lot of different types of venues here, but let's see if we can
come up with something that might be of some assistance to us.
It is apparent, Professor Cross, that you do a lot of
things, from your testimony, that you may not have to do.
Ms. Cross. Not if I want insurance.
Chairman Hatch. In the interests of trying to be fair to
copyright owners, you have done more than just say, well, I
looked through the Internet and I couldn't find anything. And
we might be interested in what you think constitutes a due
diligence search. I think I have some ideas of what I think
would constitute that, and I think there are extremes one way
or the other that we would like to avoid, but if we go to
legislation like this, have some sort of a basis whereby people
feel confident that there has been at least some effort made to
discover the copyright owners.
We would appreciate any other help you can give us. We will
keep this record open. We don't have any desire to stick
anybody with legislation that might not be as effective as it
should be. We would like to do the best job we can here, and I
in particular am extremely interested in history and in the
documentation that we have from history.
Through museums like your own, we benefit tremendously from
these types of materials if they can be disseminated widely,
and we lose if we can't find some way of disseminating it. So
we would be very interested. We can see that there is a lot of
work to be done here and, like I say, we don't want to hurt
anybody, but we would like to get this where it works to the
best of our ability.
We have listened to you, Mr. Holland, and you, Mr. Perlman,
in particular, about your real concerns. But I have listened to
all of you and we would appreciate any further help you can
give us. We will keep the record open so you can write to us.
This has been a very helpful hearing and I want to thank
each of you for being here and participating. Although we may
not in the end be able to accommodate all of the views and
suggestions that have been made here today, please be assured
that Senator Leahy and I will carefully consider them before
moving forward with any orphan works bill, and the rest of the
Committee as well. We welcome your ongoing participation as we
move through the legislative process.
Now, we are going to hold this hearing record open for an
additional 7 days, which is, we think, a pretty good time. If
you need more time, please let us know because we will continue
to work on this and we would love to have your expert advice.
With that, we want to thank you all for being here and the
hearing stands adjourned. Thanks so much.
[Whereupon, at 3:33 p.m., the Subcommittee was adjourned.]
[Submissions for the record follow.]
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