More Testimony . . .
Stock Asylum Staff Report
March 29, 2006
A U.S. House of Representatives subcommittee has closed the record on
the oversight hearing about The Report on Orphan Works. In addition
to the verbal testimony of four witnesses, the record also includes
written testimony from the same four witnesses and additional written
testimony from 12 other sources.
Joe Keeley, counsel for the Judiciary Committee's Subcommittee on the Courts, the Internet and Intellectual Property, said bound copies of the verbal and written testimony will be published by the Government Printing Office, but probably will not be available for several months. A digital version of the report will be available at the same time.
Closing the hearing record does not mean the orphan works issue is resolved. Closed-door meetings are continuing in Washington DC. Several groups with an interest in the orphan works issue, the U.S. Copyright Office (which proposed the legislation), and congressional staff have been meeting since shortly after the March 8 subcommittee hearing. Little is known about the substance of these meetings, but some progress has been reported in resolving at least some issues of concern to visual artists like illustrators and creators of stock photography.
The Stock Asylum has reproduced below excerpts from the written testimony.
The American Society of Composers, Authors and Publishers (ASCAP):
"Despite these reservations, we welcome certain aspects of the drafted legislation. For one, ASCAP commends the Copyright Office and the drafters for properly defining an orphan work as a work whose copyright owner cannot be located, rather than one whose owner does not respond to requests for permission. (Orphan Works Report at 97.) We also agree with rejection of onerous new formalities, which Congress has deliberately reduced and eliminated as a precondition for copyright protection over the last decades, and which our nation’s international obligations (through the Berne Convention and the TRIPs Agreement) proscribe. (Id. at 104-05.) Finally, the orphan works bill rightly refuses to divest copyright owners of all their rights as a consequence of a work becoming orphaned. Though well-intentioned, these positive aspects do not outweigh ASCAP’s belief that orphan works legislation is unnecessary with regard to musical works and their nondramatic public performance."
To read the entire written testimony, click here.
Mercatus Center at George Mason University (submitted by Jerry Brito,
Legal Fellow):
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."
To read the entire written testimony, click here.
The Digimarc Corporation:
"We believe that policy makers can facilitate the adoption of technologies such as digital watermarking to enable content owners and users to improve their level of collaboration to help address the challenge of orphan works. In particular, we urge the Committee to consider:
1. Amending Chapter 5 of the Copyright Act , expressly authorizing courts to consider whether a copied digital work included a publicly-readable digital watermark -- by which the copyright owner could have been identified and contacted -- in determining whether infringement of the work was “willful;”
2. If provisions akin to those proposed by the Glushko/Samuelson Copyright Clearance Initiative are adopted, then listing a search for a publicly-readable digital watermark - by which the copyright owner could have been identified and contacted -- as one of the factors appropriate for consideration in determining whether a user’s inquiry was a “reasonable efforts search;” and
3. Recommending that the Copyright Office host a web page with information about digital watermark reader software that can be freely downloaded by the public, to check audio, video and image content for watermarked data by which the copyright owner of such content may be identified and contacted.
To read the entire written testimony, click here.
The Directors Guild of America:
"Under typical industry practice in the United States, directors and screenwriters are employed by movie studios on a 'work for hire' basis; accordingly, they do not hold the copyright to the movie. They do, however, have various economic and creative rights established both in the collective bargaining agreement negotiated by their respective guilds, and in specific contractual arrangements they enter into with the copyright holder. Screenwriters have similar continuing economic and creative interests in motion pictures.
"DGA continues to believe that any expansion of the public’s right to access and use orphan motion pictures must take into account all existing legal and contractual rights of creative artists in connection with their interests in the economic proceeds and integrity of their work, and in rights of attribution concerning their creative role.
"While in some cases a motion picture may be orphaned because the copyright holder determines the picture has no continuing economic value, or insufficient value to justify the expense of protecting the copyright, the motion picture will likely still have value to the creators."
To read the entire written testimony, click here.
Graphic Artists Guild:
" We respectfully request that Congress give organizations representing visual creators more time. We agree with the request for an additional year made by David Trust of the Professional Photographers of America, who represented visual creators at this hearing."
To read the entire written testimony, click here.
Lawrence Lessig
"In my view, the Copyright Office has done an excellent job validating the concerns that originally led you to act. Through an extraordinarily open set of proceedings, the Office gathered a wide range of views that addressed the costs of orphan works. The report does an excellent job in summarizing and analyzing those views. It embodies an integrity and balance that is essential for informed policy making. It will provide an important foundation for Congress’ work as it addresses this issue.
"The most significant contribution of the Copyright Office’s Report is its implicit recognition that copyright owners have a responsibility to help make the copyright system function more efficiently. As I will describe in more detail below, the essence of its proposal is that unless a copyright owner is accessible after a 'reasonably diligent search,' the remedies available to that copyright owner will be curtailed. This rule means that the copy-right owner bears some burden (the burden of maintaining accessibility) as a condition of getting the full benefits of copyright law’s protection."
To read the entire written testimony, click here.
National Writers Union:
"The National Writers Union maintains that a registry and licensing agency (or agencies) are essential to ease of use of copyrighted works in compliance with the law. As Justice Ruth Bader Ginsberg explained in the majority decision in New York Times v. Tasini, there is a simple way for prospective users to gain access to copyrighted material: pay for it. Private licensing agencies already exist and are ready means to access copyrighted material, including when the individual rights owner may not be available for one reason or another."
To read the entire written testimony, click here.
Stock Artists Alliance:
"We believe the possibilities for abuse of this statute are considerable and that such misuses would have a severe negative impact on our businesses and on those of our photo buyers."
To read the entire written testimony, click here.
Broadcast Music, Inc. (BMI):
"Although the Copyright Office’s report takes notice of the existence and the efficacy of collective licensing organizations , the Office’s legislative proposal does not itself reflect the role that collective licensing organizations can play in reducing the incidents of orphan works problems. Jule Sigall did candidly acknowledge in his written testimony on behalf of the Office that the adoption of the proposed legislation by Congress might galvanize the non-music copyright industries to create collective licensing organizations similar to the music performing rights organizations. (Editors note: Sigall is associate register for policy and international affairs, at the U. S. Copyright Office.) Mr. Sigall stated that: 'In fact, enactment of orphan works legislation may be the catalyst necessary to prompt the non-legal marketplace reforms that will most efficiently address the problems identified by photographers and creators of visual images.' The logic of this statement is apparent."
To read the entire written testimony, click here.
Film Makers (This is a joint statement of Film Arts Foundation,
FIND (Film Independent), International Documentary Association (IDA),
Independent Feature Project (IFP), National Alliance for Media Arts
and Culture (NAMAC), National Video Resources (NVR), and Public Knowledge:
"When a filmmaker cannot clear an orphaned work, she is left with two choices under the present system: 1) proceed, using the work, with the knowledge that unknown liability costs — or even an injunction — may lie ahead; or 2) refrain from using the work. For the independent or documentary filmmaker today, there is no real choice. Without a large institution to help spread the monetary risk, with the knowledge that she will have to compete aggressively to sell her film to often risk-averse distributors and obtain insurance, and with the possibility of an injunction that could silence her film forever, she simply cannot use the orphaned work. As such, the creative work that she has conceived and would like to present to the public is compromised, and the orphaned work languishes in obscurity and silence."
To read the entire written testimony, click here.
Illustrators' Partnership of America:
"Users who wish to exploit work royalty-free have every incentive to minimize its value. Congress should not rely on their assertions as evidence that the work has little or no value in commercial markets. Value is based on quality and demand, not on genre or age."
To read the entire written testimony, click here.
Advertising Photographers of America:
"Ironically, without the protections afforded to creators by copyright law, artists could not afford to create new work, and the museums, libraries and scholars that have fought so hard to bring the orphan works issue to the fore would have no works to exhibit, no books to check out and no art or literature to study. For many in Congress, the phrase 'orphan work' might conjure up an image of a dusty, aged photograph of a long dead matriarch. But, under the proposed amendment, works that are being created by artists working in their studios across this country right now, as you read this sentence, are destined to become 'orphan works' under the law."
To download the entire written testimony, click here.
For Judiciary Committee information about the March 8 hearing, including a video webcast of the proceedings, click here.
