Mercatus Testimony . . .
Stock Asylum Staff Report
March 29, 2006
(Editors
note: Following is written testimony presented to the U.S House of Representatives'
Judiciary Committee, Subcommittee on Courts, the Internet, and Intellectual
Property about proposed orphan works legislation by the Graphic Artists
Guild. Footnotes have been removed.)
Written Testimony of
Jerry Brito, Legal Fellow,
Mercatus Center at George Mason University
and
Bridget
Dooling, Editor-in-Chief,
Federal Circuit Bar Journal
Submitted
to the
Subcommittee on Courts, the Internet, and Intellectual Property,
United States House of Representatives
March 7, 2006
Mr. Chairman and Members of the Committee:
We appreciate the opportunity to enter written testimony into the record of the Committee’s hearing on orphan works. Jerry Brito is a research fellow with the Regulatory Studies Program of the Mercatus Center, a 501(c)(3) research, educational, and outreach organization affiliated with George Mason University. Bridget Dooling is a law student and the editor-in-chief of the Federal Circuit Bar Journal, a legal journal at George Mason University.
We recently completed an analysis of the orphan works problem and evaluated several of the leading proposed solutions. Our study, which is published in the current issue of the Michigan Telecommunications and Technology Law Review, is attached as an appendix to this testimony.
While our proposed legislative solution differs from the one proposed by the Copyright Office, we concur with the analysis in its Report on Orphan Works. We would like to highlight a few conclusions of our own analysis that we think might be helpful to your deliberations.
• The orphan works problem was created in large part by the elimination of formalities that resulted from the United States’ ascension to the Berne Convention. While the reintroduction of formalities into U.S. Copyright law might help fix the orphan works problem, it is not a practical solution unless we are prepared to abrogate Berne and other international intellectual property treaties.• The Supreme Court has made clear in at least 74 years of jurisprudence that the grant of temporary monopoly rights to creators is a secondary concern of the Constitution’s Copyright Clause. The primary aim is the furtherance of creative innovation that benefits the public at large. With that in mind, it is not unthinkable for a reasonable solution to the orphan works problem to impinge somewhat on the existing rights of authors if doing so serves the public interest.• An efficient solution to the orphan works problem will create an incentive for authors to take every reasonable step to identify themselves so that would-be users of their works can find them and seek their permission.• An efficient solution to the orphan works problem will create an incentive for would-be users of a work to take every reasonable step, in good faith, to identify the work’s copyright owner in order to acquire permission to use the work. Perfunctory attempts to seek permission, or sham attempts made in bad faith, should not qualify a user for protection.• To protect both copyright owners and would-be users, courts should apply any orphan works protection on a case-by-case basis. Only through case-by-case analysis can would-be users’ claims that they could not locate an owner be fairly judged. A categorical approach—defining a class of works as orphan works and automatically limiting liability for using works in that class—impinges on authors’ rights more than is necessary to address the orphan works problem.• If a user of an orphan work is found by a court to have conducted a reasonable search in good faith, she should not be subject to any monetary liability. This will help create the needed incentive for authors to take steps to make themselves locatable. Additionally, it would eliminate the need for courts to have to speculate on what would be reasonable compensation for use of a work. Of course, users should have to acquire permission before they can make future uses of the work.• If a user of an orphan work is found by a court to have conducted a reasonable search in good faith, she should not be subject to injunction where the orphan work is part of a derivative work that includes her own expression. This will help create the incentive for authors to take steps to make themselves locatable. Additionally, it will foster the creation of new works that would otherwise go unrealized if the possibility of injunction existed.
• Orphan works are not a transitory problem. Additionally, Congress may modify the Copyright Act any time it becomes necessary. Therefore, there is no reason why an orphan works amendment to the Copyright Act should include a sunset provision.
The orphan works problem undermines the purpose of copyright law, which is “[t]o promote the Progress of Science” to ensure “broad public availability of literature, music, and the other arts.” It stifles this goal by putting a large swath of the public domain in doubt and by making it practically impossible to locate many rightsholders to license their works. Some have suggested solutions that require an overhaul of U.S. copyright law, but these solutions are impractical and unnecessary. Recognizing this, Congress should enact a safe harbor from copyright infringement liability for those who conduct a reasonable search in good faith for a work’s copyright holder before using the work. Doing so would remove the unfortunate choice between using an orphan work and bearing the risk of infringement litigation, or abstaining from the very derivative use that the copyright laws are intended to encourage.
We hope our findings are useful to the Committee as it weighs various options for orphan works reform.
This testimony reflects only the views of its authors and does not represent an official position of George Mason University or their other affiliations.
