[Ecommerce] PK on orphan work discussions at LOC

[Manon Ress]

  In the Know - a bimonthly Public Knowledge update

QUOTE
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  Orphan Works Panelists Ask for Flexibility
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Two days of roundtable discussions on orphan works held July 25 and
26 by
the Library of Congress didn't reach consensus on many issues, but there
was some consensus around the need for staying away from rigid,
regulatory
models of setting up a reporting and compensating system.

Working through topics such as how to identify orphan works and how to
compensate authors who show up to claim parentage, participant
discussion
ranged across many possibilities.  This was due, in part, to the
large size
of the roundtables.  There were 24 participants at each of the
sessions the
first day, followed by 14 and 8, respectively, on the second day.
The Aug.
5 roundtable at the University of California at Berkeley will have 21
participants in the first panel, 18 on the second.

The proposal garnering the most support on how to identify orphan
works was
one in which the status of an orphan work would be decided on a
case-by-case approach after a reasonably diligent search.  Under such a
system, would-be users of orphan works could voluntarily register their
searches.  Most participants, even those who supported the ad-hoc
approach,
believe that the ad-hoc approach's biggest downfall is the uncertainty.
The approach is uncertain because whether efforts were reasonably
diligent
will depend on the type of work the individual is searching, due to the
difficulty of finding photographers and other visual artists.  Another
uncertainty is how the court will actually apply this "reasonably
diligent"
standard.  For example, will the standard be applied differently
depending
on who is doing the search, since bigger organizations and
universities are
much more likely to conduct a thorough search than would an individual?

Once a work is officially designated as an "orphan," the question of
compensation comes into play.  Participants in the second panel noted
that
all orphan works are not created equal, in that an unpublished photo
with
no known photographer might have a different value for an archive or
academic research than a film clip used in a commercial movie.  However
that topic turns out, there is the question of whether royalties for
using
an orphan work should be capped, fixed, or set at a reasonable market
value
- however that might be determined.  The royalty issue was paired with a
discussion of appropriate penalties for unauthorized use of what
turned not
to be an orphan work.

The consensus in this panel seemed to center on the idea that there
should
be lower standards for what constituted a diligent search, and lower
fees
and damages for a work used for non-commercial purposes, and higher
standards for using a work in a commercial project.  The American
Association of Publishers, Google, and the Directors' Guild of America
generally agreed.

There was little consensus on the third panel on topics such as whether
there should be some sort of damages or a court injunction if the
rightful
owner of the supposed orphan shows up.  The panel on international
issues
agreed that foreign works couldn't be excluded from the U.S. orphan
works
system, because many orphan works are foreign.

Thanks to PK interns Kay Lu, Rob Kendall and Jay Tamboli for their
dedication in monitoring and writing up the proceedings.

END OF QUOTE