In Berne Convention, Copyright, Copyright Act, Fair Use, H.R. 5889, Orphan Rights, Orphan Works, TRIPS

We can summarize our hopes of this bill quite simply: we’d like to work with Congress to see that this bill becomes a true orphan works bill, with no unnecessary spillover effect that would damage the everyday commercial activities of contemporary working visual artists.

For example, on June 5, the EU announced a Memorandum of Understanding towards an orphan works regime that would permit European libraries, museums and archives to digitize their collections of orphaned work. We believe a bill of similar specificity in the U.S. would not only solve the problems confronting libraries and archives here, it would harmonize U.S. policy with our trading partners overseas and win wide praise from the creative community in the U.S., whose members would benefit from increased access to these works without seeing the rights of their own work put at risk.

We believe this could be accomplished by a precise expansion of USC, Title 17, § 108: Limitations on exclusive rights: Reproduction by libraries and archives. Unlike the present bill’s all-encompassing creation of a new § 514: Limitation on Remedies (which covers all works for any use), this approach would not lead to the widespread violation of exclusive rights under the 1976 Copyright Act, The Berne Convention and TRIPS. We believe similar orphan works situations – family photo restoration and duplication, personal genealogy usage of orphan works, and orphan works rights clearance for documentary filmmakers – can all be resolved in a similar manner, by carefully and precisely expanding Fair Use: USC, Title 17, § 107: Limitations on exclusive rights.

For example, family photo issues could be resolved with a simple contractual agreement: the person who wishes to duplicate or restore a photo of Grandma could sign an easy-to-understand agreement, (with either companies such as Walmart or with the photographer next door) stipulating that they’ve made a reasonably diligent search but failed to identify or locate the photographer of record and thereby qualify for a precise limited copyright exemption to restore or duplicate the work for home and/or family use only.

Under this scenario, should the photographer (or artist) of record subsequently come forward, the contract would define the specific remedies. The case of an individual who wishes to duplicate his or her own family photos would be even simpler to deal with: the individual would simply sign a form stipulating that he/she is the author and copyright holder of the work. Period. Any bad-faith assertions or violations of such agreements could then be dealt with as a contractual matter between individual parties, with no unnecessary damage to the rights of others.

We believe this kind of contractual solution to individual orphan works problems would create certainty by specifying the terms of each transaction and would, in fact, mirror the kind of indemnification that professional artists and photographers regularly supply to publishers and other clients, stipulating that our work is original and doesn’t infringe the rights of others. It would have the additional virtue of requiring that only those who avail themselves of a right to infringe would be required to understand the law, unlike the present bill which would require every citizen to understand the risks and obligations inherent in the present bill.

Finally, we would like to note that a current law already exists to limit statutory damages to not less than $200 for “orphan works” infringements by an employee or agent of a nonprofit educational institution, library, archive or public broadcasting entity acting within the scope of his or her employment. See USC, Title 17, § 504 (c)2(i) and (ii): Remedies for infringement: Damages and profits.

With this specific exemption already on the books, we believe the kinds of solutions we’ve sketched in here could be arrived at amicably by working with members of the creative community who are familiar with how copyright law intersects with standard business practice. This kind of imaginative solution should win widespread praise from all parties, while preserving the sanctity of existing copyright-related contracts. It would protect the small businesses that are the heart and soul of the creative community and would continue to act as an on-going incentive to further the creation of new work.

The Illustrators’ Partnership of America, the Artists Rights Society and the Advertising Photographers of America have jointly submitted amendments to the House Judiciary Committee.

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