Public Knowledge Asks Cap on ‘Orphan Works’ DamagesMarch 8, 2006
Background: The House Subcommittee on Courts, the Internet and Intellectual Property today held an oversight hearing on the “Orphan Works” report issued in January by the U.S. Copyright Office.
Public Knowledge President Gigi B. Sohn said today that Congress should provide for a fixed amount of damages to compensate artists who use what they believed to be orphan works in their work. Orphan works are works whose author can't be located. However, if an author eventually comes forward, then some compensation would be due.
“The Copyright Office's report was an excellent analysis of the issue, and we agree with the majority of their recommendations,” Sohn said. She added, however, that Public Knowledge disagrees with the recommendation in the report that “reasonable compensation” should be the standard for damages. “We would like to see more certainty in the process. Setting a low amount of damages, whether $200 per use or a similar amount, would encourage the use of orphan works while giving artists some ground rules for proceeding with their work. The “reasonable compensation” approach keeps the orphans in the orphanage,” Sohn said. The possibility of long negotiations or court action over compensation will still deter artists from using orphan works in their own creations,” Sohn said.
Should Congress adopt a reasonable compensation standard, Sohn said that the “safe harbor” provisions which protect non-commercial users from paying any compensation if the emerging owners request the use of their work be stopped should be expanded to include commercial users as well.
“Small individual artists are engaged in commerce, and should have the same protections as non-commercial institutions,” Sohn said. “The goal is to be able to expand the use of orphan works, and the combination of low damages and a safe harbor should accomplish that goal.”