[Ecommerce] Orphan works: June Cross testimony In the Know -- April 17, 2006
Manon Ress
manon.ress@cptech.org
Mon Apr 17 15:02:01 2006
From: Public Knowledge <pk@publicknowledge.org>
Date: April 17, 2006 12:51:19 PM EDT
To: in-the-know@publicknowledge.org
Subject: In the Know -- April 17, 2006
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In the Know -- a bimonthly Public Knowledge update
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April 17, 2006
Contents:
* House Subcommittee Approves Telecom Bill
* Senate Panel Hears About Orphan Works
The podcast version of this issue of In the Know is available
from:
<http://www.publicknowledge.org/node/234>
SNIP
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Senate Panel Hears About Orphan Works
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The Senate Intellectual Property Subcommittee on April 6 took its
turn hearing about the problems of orphan works. Orphan works
are those works for which a copyright holder can't be found.
However, the danger to using the orphans in another work, whether
a film, song or material, is that the owner may emerge and seek
all the monetary damages that accompany a claim of copyright
infringement.
The U.S. Copyright Office earlier this year produced a report
analyzing the orphan works issue and making recommendations for
remedies so that more orphan works could be used. Among other
items, the Copyright Office called for "reasonable compensation"
for copyright holders should they appear. PK and many others
thought that solution wasn't sufficient to prevent extensive
litigation. We called for a cap on damages.
At the hearing, June Cross, a professor at Columbia University in
New York and a noted documentary journalist testified
representing documentary filmmakers, independent media artists
and PK. Working with Jennifer Urban's IP Clinic at the
University of Southern California Law School, PK helped to draft
Professor Cross' testimony and prepare her for the hearing.
In her testimony, Cross told the Subcommittee of the problems she
has encountered in trying to use orphan works in her films. She
set out all the steps she took to find who took some home movies
of a street in Harlem in 1954. Amazingly, she found the owner,
but it took three months. Cross said that because the
documentary on which she was working, about her own family, was
for the Public Broadcasting Service, she had the time for a
thorough search. A commercial outlet wouldn't have given her
that time, Cross added.
Cross asked the Subcommittee to pass legislation establishing a
cap on damages from an orphan works claim. Such a cap would help
quantify the risk for insurance companies, which are now very
skittish about giving filmmakers like Cross insurance for their
projects, she said. Cross said that within the last few years,
she can't obtain insurance against errors and omissions, a common
type of insurance in her field, if she can't prove who the
copyright holder is for a particular piece of film, "no matter
how much due diligence I perform. The fear is that the rightful
owner could bring a lawsuit for untold millions and ruin us all."
Photographers and illustrators are the groups most opposed to
orphan works reform. They argue that potential users of their
works wouldn't do a sufficiently diligent search, and as a
result, many works would essentially be stolen. Victor Perlman,
general counsel of the American Society of Media Photographers,
said the Copyright Office's proposal to allow a "good faith,
reasonably diligent search" as the standard before declaring a
work an orphan. Perlman said the proposal would be a "disaster
of Biblical proportions" for his members. Brad Holland, founding
board member of the Illustrators' Partnership of America, said
the Copyright Office proposals would "legalize infringement."
Cross, however, said there would be a "rigorous standard" for
searching, not simple "one stop shopping." At one point in the
hearing, Holland argued that a work of his was being infringed
upon by an Iranian Web site and argued that orphan works were the
equivalent of piracy. But Cross replied that Holland's work
isn't orphaned because he is able to be found, and said there was
"a distinction between stealing and being able to find a person."
The written statements from the hearing witnesses are here:
<http://judiciary.senate.gov/hearing.cfm?id=1847>
Professor Cross's oral statement is here:
<http://static.publicknowledge.org/pdf/jcross-oral-
testimony-20060406.pdf>
An audio recording of the hearing is available here:
<http://www.archive.org/details/UnitedStatesSenate>
Other materials related to orphan works are on our page:
<http://www.publicknowledge.org/issues/ow>
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Briefly: The Alliance for Taxpayer Access (of which PK is a
member) reported that an advisory group to National Institutes of
Health (NIH) Director Elias Zerhouni met on April 10 and
reaffirmed its policy from last fall that posting of
taxpayer-funded research to NIH's PubMed Central web site should
be mandatory within six months of publication. The ATA report is
here: <http://www.taxpayeraccess.org/media/Release06-0413.html>.
The continuingly abysmal statistics on how many papers were
submitted under the voluntary system are here:
<http://www.nihms.nih.gov/stats/2006-02.html>
The Committee for Economic Development released its new report,
"Open Standards, Open Source, and Open Innovation: Harnessing the
Benefits of Openness." The report examines the benefits of open
standards, open-source software, and open innovation -- and has
some recommendations for improving open environments, including
suggesting that NIH make more research available online. Details
here: <http://www.ced.org/projects/ecom.shtml#open>
FreeCulture.org will celebrate its two-year anniversary with a
conference April 21-23 at Swarthmore College near Philadelphia.
Guests will include Stanford U. Law Professor (and PK Board
member) Lawrence Lessig and PK's own Alex Curtis. Details at:
<http://freeculture.org/summit2006/>
* * *
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Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org
Consumer Project on Technology
1621 Connecticut Ave, NW, Washington, DC 20009 USA
Tel.: +1.202.332.2670, Ext 16 Fax: +1.202.332.2673
Consumer Project on Technology
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Tel: +41 22 791 6727
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