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PK and a group of film makers told the House Judiciary Committee last week what we would like to see as key elements of orphan works legislation. The testimony was submitted by PK and the following group of independent film maker organizations: Doculink, Film Independent, International Documentary Association, Independent Feature Project, National Alliance for Media Arts and Culture, and Tribeca Film Institute, for the record for the March 13 House Judiciary hearing that Rashmi wrote about here.
This testimony would not have happened but for the amazing collaborative effort by Jennifer M. Urban, Director of the Cyberlaw Clinic at Mills Legal Clinic at Stanford Law School, two of the clinics outstanding law students: Leslie Liang and Casey McCracken, and Michael Donaldson (who has literally written the book on clearing copyrights for film makers). We are grateful to continue to work with the individuals and organizations who, in their follow-on works, shed light on orphans to enrich and enlighten our culture.
In the testimony for the record, we emphasized the following ideals should embody orphan works legislation going forward:
“Reasonably diligent search” should be defined in a flexible manner to account for differences that users in different industries, using different media platforms, and searching for owners of very different types of works, are likely to face in the search process
If “best practices” are desired to aid the user in his or her search, they should be guidelines generated by stakeholders and made available to the public through the website of the Copyright Office. Any best practice guidelines should be true guidelines and not legally determinative.
“Reasonable compensation” to a surfacing owner should be defined as the amount upon which a reasonable willing buyer and a reasonable willing seller in the positions of the infringer and the owner would have agreed with respect to the infringing use of the work immediately prior to the commencement of the infringement.
Injunctive relief should not be available against qualified orphan works users if the orphan work is adapted for or incorporated into another work that includes separate substantial expression.
The scope of orphan works relief should include all categories of works and types of uses, with no distinction between “commercial” and “non-commercial” works or uses.
If necessary to addresses the copyright registration problem, the Copyright Office should identify publicly accessible recognition-based registries that are technologically open and developed in the marketplace.
The effective date of orphan works legislation should not be delayed inordinately pending development or identification of registries or best practices.
We'll be updating our Orphan Works issue page real soon to account for the recent updates in Congress. Stay tuned because this issue is really heating up.