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Riya 2.0 Aids Search for Orphan Works

June 16, 2006 Orphan Works , Policy Blog

I was reading today on Tech Crunch and it's report about the the next version of riya. For those of you who've never heard of riya, think of it as flickr with facial and image recognition. It's pretty sweet (and a little scary), and you can learn more about how it all works straight from the horse's mouth here.

Anyhow, Michael Arrington said…

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Indy Filmmakers Go to Washington

June 8, 2006 Blog Posts , Orphan Works

Amid the net neutrality madness on the Hill, Public Knowledge brought six individuals, including independent filmmakers, their organizational representatives and their insurers, to meet with Congress members and their staffs about orphan works — works for which the copyright holder cannot be found. This was the first time that any of them had come to Washington to educate policymakers.

Joining us were Pam Colby, a filmmaker Executive Director of the Minneapolis Telecommunications Network and President of the Board of the National Alliance for Media Arts and Culture (NAMAC), Diane Estelle Vicari, a filmmaker and President of the International Documentary Association(http://www.documentary.org/), Michael Donaldson, a film producer and a partner in the law firm of Donaldson & Hart, Sandra Ruch, Executive Director of the International Documentary Association, Winnie Wong, Vice President of DeWitte, Stern Group, an entertainment insurance broker, and Jen Urban, Director of the IP Law Clinic at USC. Except for Pam, everyone was from California. PK hopes to make these visits at least an annual event, to ensure that members of Congress and their staffs understand that independent filmmakers have their own interests in copyright and technology policy that often differ from the large Hollywood studios.

Here we are right before our first meeting:

Visiting Filmmakers

Each filmmaker had a story to tell about how the inability to find a copyright holder led them either to forgo using an orphan work or to take an enormous risk — under current law, if an artist uses an orphan work and the copyright holder reappears, the artist could be liable for the full panoply of damages under the Copyright Act, which could amount to tens of thousands of dollars. Obviously, small artists like independent filmmakers cannot afford to take such a risk, in large part, as Winnie Wong explained, "Errors & Omissions" insurers will not insure a filmmaker who might be subject to a huge financial liability. Without that insurance, filmmakers cannot get their film distributed. The Copyright Office has proposed limiting artists' liability if they cannot find a copyright holder after undertaking a "reasonably diligent search" to find them. Rep. Lamar Smith has a bill that adopts this core proposal.

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Statement of Public Knowledge on Orphan Works legislation

May 24, 2006 Blog Posts , Orphan Works

This is the statement we sent out yesterday on the Orphan Works bill. Gigi covered it pretty well in her blog post.

Background: Yesterday, Rep. Lamar Smith (R-TX), chairman of the House Intellectual Property Subcommittee, introduced HR 5439, the Orphan Works Act of 2006. The bill is scheduled to be marked up in subcommittee tomorrow (May 24).

Public Knowledge is part of a coalition that has been active in promoting the use of orphan works. Others in the group are: Association of Independent Video and Filmmakers; Doculink; Film Arts Foundation; FIND (Film Independent); International Documentary Association; Independent Feature Project (IFP); National Alliance for Media Arts and Culture; National Video Resources.

The following is a statement from Gigi B. Sohn, president and co-founder of Public Knowledge:

We thank Chairman Smith for his work on this issue. We believe the Smith bill is a significant improvement over the draft bill proposed in February by the Copyright Office.

The bill will allow for more use of works for which the copyright holder can't be found – "orphan works." The Smith bill would allow a new work which includes an entire orphan work to go forward in the face of a copyright challenge later on. For example, publication of a history book which includes an orphaned photograph could not be stopped because of the photo. The authors of the book may have to pay compensation to the copyright holder, but publication of the book would not be stopped.

The bill would limit liability for those who make a "reasonably diligent search" to find a copyright holder but cannot. The bill makes clear that in determining the 'reasonable compensation' an orphan works user must pay should the orphan works owner reappear, the owner has the burden of establishing the amount that a willing buyer and willing seller would have agreed to. The bill also eliminates a provision in the Copyright Office draft that would have required the rules to sunset after 5 years.

We would prefer a cap on damages as opposed to the "reasonable compensation" standard in the bill. At the least, there should be more certainty that "reasonable compensation" will not lead to great financial liability for the user. We hope there will be language in the Judiciary Committee report on the bill that would make clear that the amount of compensation for use of an orphan work that has been out of circulation should be low and should decline over time.

We also would prefer the "safe harbor," which prohibits any payment if a user immediately ceases using the orphan work when an owner reappears, to apply both to commercial and non-commercial uses. The concern here is that small artists who sell their works should be entitled to the same safe harbor as large museums and libraries. We continue to work on language that seeks to protect small artists.

UPDATE: The Subcommittee approved the bill on May 24.

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Orphan Works Bill Introduced

May 23, 2006 Orphan Works , Policy Blog

Late yesterday afternoon, Lamar Smith (R-TX), Chair of the House Subcommittee on Court, Internet and Intellectual Property introduced HR 5439, the Orphan Works Act of 2006. The bill, which seeks to limit liability for artists, educators and others who make a "reasonably diligent search" to find a copyright holder but cannot, is a significant improvement over the draft bill proposed by the Copyright Office in February. Here are some of the changes we like:

  • It prohibits injunctions when the user of an orphan work "recasts, transforms, adapts or integrates the [orphan] work with the [user's] original expression in a new work of authorship…." This ensures that the publication of transformative works that may include the entirety of an orphan work will not be able to be stopped by a court.

  • It requires the Copyright Office to make available information that will help users understand what might constitute a reasonably diligent search.

  • The bill makes clear that in determining the "reasonable compensation" an orphan works user must pay should the orphan works owner reappear, the owner has the burden of establishing the amount that a willing buyer and willing seller would have agreed to.

  • The bill eliminates a provision that would have required the rules to sunset after 5 years.

While we would have preferred a cap on damages as opposed to "reasonable compensation," it has been clear from the very beginning that such a change was a political non-starter. However, we would like a little more certainty that "reasonable compensation" will not lead to a great financial liability for the user. We'll be asking for some report language that makes it clearer that the monetary value of an orphan work, particularly one that has been out of circulation for a long time, is low, if not zero.

We also would have liked the "safe harbor," which prohibits any payment if a user immediately ceases using the orphan work when an owner reappears, to apply both to commercial and non-commercial uses. The concern here is that small artists who sell their works should be entitled to the same safe harbor as large museums and libraries. We understand that Congress members do not want to give this advantage to large users like Hollywood studios. We'll be working on language that seeks to protect small artists.

This bill is on a fast track – it will be marked up by the Subcommittee this Wednesday. Stay tuned.

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In The Know Podcast #15 UPDATED

April 17, 2006 Blog Posts , Network Neutrality , Orphan Works , Policy Blog

We've updated our Podcast post, in case your RSS reader doesn't note the change. You can find it here.

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