In Berne Convention, Copyright, Copyright Act, Orphan Works, TRIPS

March 8 – Public Knowledge President Gigi B. Sohn said today that Congress should set a fixed amount of damages – $200 per use or a similar amount,” to compensate artists whose work would be infringed under the proposed Orphan Works amendment.

“The Copyright Office’s report was an excellent analysis of the issue,” Sohn said, “and we agree with the majority of their recommendations.” But Public Knowledge disagrees that artists should receive “reasonable compensation” for unauthorized use.

“We would like to see more certainty in the process,” she said. “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…The ‘reasonable compensation’ approach keeps the orphans in the orphanage.”

Should Congress adopt a reasonable compensation standard, Sohn said that the “safe harbor” provisions which protect non-commercial users should be expanded to include commercial users as well. That way, no payment would be due artists who emerge to request that the use of their work be stopped.

“Small individual artists are engaged in commerce,” Sohn said, “and should have the same protections as non-commercial institutions…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.”

Public Knowledge is funded by the MacArthur Foundation, Ford Foundation, Rockefeller Foundation, and Andy Warhol Foundation, among others.

— The Illustrators’ Partnership of America
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