Mr. Chairman,

 

Thank you for scheduling this oversight hearing on the Copyright Office’s report on orphan works.  Unfortunately, I have to leave the hearing a little early, so my opening statement will be a little unconventional - in that it will consist of the questions I would like to ask, but may not get a chance to.  Before I begin though, I must commend the Copyright Office on their legislative proposal, which seems to have united many owner and user groups in search of a solution to the orphan works problem.

 

Clearly, the recommendation goes a long way to meeting users concerns of making beneficial uses of works when copyright owners cannot be found.  This allows our society to be enriched by access to works that otherwise, and most likely, would be lost.  However, this must all co-exist against the backdrop of maintaining the incentive for creators to pursue their art.  When it comes specifically to the category of owners of visual art works such as photographers and illustrators, I have some concerns about the effect of the orphan works provision. 

 

Currently, a user can begin a search by typing in search terms in a registry, be it the copyright office, or for musical works by contacting BMI or ASCAP- however, there is no collective registry for photographic or illustration information making owner information, in many instances, almost impossible to find.  Therefore, according to this proposal, if a reasonable search and attribution allows one to qualify for a limitation on remedies, will most owners of photographs be required to forgo their normal remedies when the information cannot be found?

 

This issue is the elephant in the room.  Is the current copyright system layered by the orphan works provision adequate to protect visual arts owners?   After all, the most basic question seems unanswerable: Where does one even begin the process of finding the owner information for most illustrations/photographs? 

 

No doubt this question may be addressed in part by some non-legislative solutions – or possibly legislative in that an appropriation is required).  For example, when I wrote to the Copyright Office about the orphan works issue I requested that they “explore the viability of creating an accurate, updated and electronically searchable database of copyright ownership.”  How much would such a database cost?

 

Currently on the Copyright Office search site, unless one has a registration number, the title, or the author name, one cannot search for the work.  Even with all that information, the search feature is extremely rudimentary.  With photographs however, where often times there is no title to the work, there is currently no mechanism to search a description of the work and the possibility of matching the work is limited, since there is no thumbnail of the photograph.  Granted, part of the problem has been exacerbated by attempts to accommodate the needs of the photographers by allowing group registration.  However, if the orphan works provision limits an owner’s right to reasonable compensation, without access to statutory damages or attorneys fees, what is the motivation for photographers to register their works in the first place?

 

While some have stated that this issue should be resolved outside the scope of this orphan works solution, I think we must be wary of going down a road that small copyright owners claim will isolate them from the benefits of the copyright system and potentially harm them.  Currently, copyright owners can use the threat of litigation with the possibility of statutory damages and attorneys fees to hinder unauthorized uses of their works.  Under this orphan works provision, while the use is still considered infringement, the remedies are so limited that likelihood of recovery, of even reasonable compensation, becomes questionable.  The cost of litigation to determine reasonable compensation would often-times far exceed the actual reasonable compensation.

 

To discuss the orphan works recommendation without addressing a core problem for major stakeholders in the process alters the balance in maintaining the exclusive rights for locatable copyright owners – where but for the fact that there is no adequate database – some of these children could be matched with their parents.

 

Some of the issues I would hope the witnesses could address are the following:

For cases in which the Copyright Office has a registration for a work with locatable information on its face, should there be an exception/carve-out to the orphan works provision? Should an owner, if able to show a registration, be able to reclaim his right to statutory damages or attorneys fees?

What if a work was not only registered, but the owner took the steps to make his work locatable by providing a description of the work - would this make a difference?

 

If the Copyright Office is proposing that this database be a voluntary database established by the photographers, should we look at a later effective date to allow time for the photographers to acclimate to this new scheme or perhaps provide a transition period?

 

Finally, would the witnesses be amendable to having the option of resolution of the orphan works issue in a small claims court to reduce the costs to small copyright owners?

 

 Of course, there are additional issues to consider such as the definition of derivative work, sovereign immunity, the right of an “interested party” to reacquire or exploit the work, all I’m sure which be addressed during the on-going negotiations. This is a great first step and I look forward to working with the Chairman and the parties in moving ahead with orphan works legislation.