In Copyright, Orphan Rights, Orphan Works, Small Business Administration

Director Tom Sullivan and Assistant Chief Counsel Cheryl Johns, Small Business Administration; New York Congressional Staff, Representatives of the U.S. Copyright Office, World Intellectual Property Organization, and the European Union, my name is David Rhodes. I am President of the School of Visual Arts an independent college of art located in New York City. I hope to persuade you on behalf of my students and faculty that the proposed Orphan Works legislation is an attempt to solve a problem that does not exist. Therefore, given that it has unintended consequences that others have discussed in detail, under the theory of do no harm, the legislation should be abandoned.

The copyright office is convinced that orphaned works are a serious problem because they received over 850 responses to their request for comment. Although only 24% of these responses addressed what the office itself thought was the orphaned works problem, they nonetheless conclude “… there is good evidence that the orphaned works problem is real and warrants attention, and none of the commenters made any serious argument questioning that conclusion.” In other words, those who believe there is no problem are defined as not serious and dismissed out of hand. As a gauge to serious some other examples are instructive. When the Federal Communications Commission tried to change ownership rules to allow further media conglomeration, a serious problem, it received millions of negative comments. More recently when the Federal Reserve asked for comments on abusive credit card practices they received 56,000 comments. Obviously, people believe that these are serious issues. Most people simply do not believe that “Orphan Works” are a serious issue.

In fact the very notion of “Orphan Works” is a suspect construction. There are really only two kinds of works. Works which I have made and whose copyright I control and works made by others for whose use I must get permission. My failure to receive permission should not orphan the work. Therefore, there are no “Orphan Works”. The Copyright Office’s own study indicated that the majority of comments it received were not about “Orphan Works”, but about works whose owner could be identified but who either did not answer requests for permission or whose license requirements were too expensive.

More importantly, in its report the Copyright Office provides little or no evidence that there is in fact a problem. There is no systematic review of the various markets to see if they are in fact dysfunctional. All of the supposed examples of the harm caused by orphan works are clearly anecdotal and in a country of 300,000,000 fall far short of the threshold for serious consideration. The Copyright Office’s own paucity of data should lead one to conclude that “Orphan Works” are not a problem at all. They have not impeded the creation of new works. Passing this legislation, however, would impede the creation of new work because it would permit the extensive use without compensation of existing work rather than encouraging end users to commission new works. This legislation would encourage a culture of banal repetition. And, since the expense of registering works will be born by the creative community the expense of copyright protection will be socialized while the profit of creative endeavors will be privatized. Copyright protection may have impeded the creation of ever-larger image banks, but that is not a problem – that is the purpose of Copyright. In short there is no problem that this legislation will fix. Therefore, prudence dictates that nothing be done.

David Rhodes has been president of the School of Visual Arts in New York City since 1978. He is an active advocate for all aspects of quality art education. Mr. Rhodes presently serves on the boards of the Association of Colleges and Universities, the New Hampshire Institute of Art, and the School of Visual Arts. Mr. Rhodes is also a Board Trustee for the Association of Regionally Accredited Private Colleges and Universities, the Association of Proprietary Colleges, and the National Association of Visual Arts. He serves as the Vice Chair on the Regents Advisory Counsel on Institutional Accreditation for the University of the State of New York, Commission for Higher Education. He has been a member of the accreditation teams for this nation’s arts schools since 1986, including such distinguished visual arts institutions as Rocky Mountain College of Art; Design, Delaware College of Art and Design, Strayer University, Bradley Academy of the Visual Arts, Fashion Institute of Design; Merchandising, Harrington Institute of Interior Design, Moore College of Art and Design, and Academy of Art College. Mr. Rhodes has testified before Congress numerous times about public policy surrounding higher education, cultural institutions and partnerships. In 2003 Mr. Rhodes was awarded the Distinguished Alumnus Award from Wesleyan University, in 2004 a Gold Medal from the Society of Illustrators, and in 2007 the Award for Outstanding Lifetime Service to Art Education from the University Council for Art Education.

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