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Mr. Brad Holland
April 6, 2006
Statement of Brad Holland
April 6, 2006
Mr. Chairman, Ranking Member Leahy, distinguished members of the Subcommittee: Last year, the Illustrators' Partnership filed a submission to the Orphan Works Study which was endorsed by 42 national and international arts organizations, representing a broad spectrum of popular artists, fine artists, medical and architectural
An Orphan Works amendment would apply to old work whose authors have abandoned their copyrights. This proposal would apply to past, present and future work.
It would apply wherever an artist's work is unmarked, or a mark or signature is obscure. It would be retroactive. It would interfere with commercial markets. It would legalize the infringement of any work of art, regardless of age, country of origin, published or unpublished, where the rights holder cannot be identified or located. It would affect illustrations and photographs disproportionately because images are commonly published without identifying information, signatures may be illegible and information can be removed by others. It would expose to infringement any work that cannot be sourced by "reasonable effort," and it risks orphaning millions of valuable copyrights that cannot otherwise be distinguished from true orphaned works.For these reasons and many more, we do not believe the statutory language proposed by the Copyright Office is a solution to the orphan works problem. It is a
The inability to distinguish between abandoned copyrights and those whose owners are simply hard to find is the Catch 22 of the Orphan Works project. Put simply, if a
Many users who responded to the Orphan Works Study have asserted that the art under consideration has little or no commercial value. While this may be true of real
Non-profit organizations which assert that only work of little or no value will be affected have not documented their assertions. Since non-profits typically offer rights
The use of any work without the author's permission violates the author's exclusive right to permit or deny usage. Similarly, payment for use after the fact violates a basic principal of negotiation: An author whose work has already been exploited has no leverage to negotiate for a fee higher than the user is willing to pay.
Artists have the right to maintain the value of their work by keeping it out of downscale or distasteful markets. The Orphan Works amendment would violate that right by giving users the unilateral privilege of exploiting another's property, regardless of the adverse effects it could have on the integrity and value of the rights holder's product.
Many artists in markets such as advertising and proprietary research enter into exclusive licensing arrangements with their clients. Because these artists are rarely permitted to sign and mark their work, this art would be subject to orphan status from its conception. This would destroy the artists' ability to guarantee exclusivity to a client, undermine the value of the art itself and retroactively jeopardize existing contracts of
Currently, copyright law is enforced by the threat of substantial penalties for infringement. By "limiting" these remedies, the Orphan Works amendment invites abuse
While the Orphan Works Report is concerned exclusively with the difficulty a user may now have in locating an author, it does not address the difficulty an author may have under Orphan Works law in locating an infringer.
Because of the "limitation on remedies," artists would never have the resources to go to court - as the Orphan Works amendment would require - to establish the case-bycase definition of a user's "reasonably diligent search." This would constitute another impossible burden placed on rights holders and undermine any premise of fairness in the system.
The Orphan Works amendment would favor infringers by providing them with a nofault defense. Since the infringer would only need to show that a good faith effort had
Under the Orphan Works amendment, every infringement of a managed copyright would create a family tree of potential successive infringements: Samples of an infringed
A "take-down" of orphaned work posted online will not be sufficient to restore its integrity. The Internet Archive, The Wayback Machine and Google Cache all provide
Because it would be retroactive, the Orphan Works amendment would betray artists who for 28 years have published in the confidence that, even without formalities, their work enjoyed the basic protections guaranteed them by the 1976 Copyright Act.
Advocates of the Orphan Works amendment claim that copyright inhibits scholarship. But that was refuted by the authors of the 1976 Act:
"[I]t is important to realize that the  bill would not restrain scholars from using any work as source material or from making "fair use" of it; the restrictions
The Orphan Works amendment in effect re-imposes formalities. By forcing the rights holder to rely on registries, metadata and notice as a condition of copyright
The letter and spirit of Berne is addressed on page 2 in this submission to the i2010 Digital Libraries project by the International Federation of Reproduction Rights
"[D]igitisation is an act of reproduction subject to the authorisation of the copyright holder...On the basis of Article 5(2)(c) of the Directive 2001/29, exceptions have
"[T]he diversity of responses highlights the fundamental importance of precisely defining the category of "orphan" works. The broader the category, or the lower the bar to making the requisite showing of due diligence, the greater the risk of inconsistency with our international obligations to uphold authors' exclusive rights under copyright. Compliance with Berne/TRIPs is required by more than punctilio; these rules embody an international consensus of national norms that in turn rest on long experience with balancing the rights of authors and their various beneficiaries, and the public. Thus, in urging compliance with these technical-appearing rules, we
At the Orphan Works roundtables, 7/26/05, Alexander MacGilivray of Google stated that "Google strongly believes that these orphan works are both worthwhile,
On page 14 of the Orphan Works Report, the authors write: "if our recommendation resolves users' concerns in a satisfactory way, it will likely be a comprehensive solution to the orphan works situation (italics added)." With all due respect, we believe a solution cannot be "comprehensive" if it resolves users' concerns by undermining "the legitimate interests of copyright holders."
We believe the orphan works problem can be and should be handled with carefully crafted, specific limited exemptions. A limited exemption could be tailored to solve
When Congressmen wrote the 1976 Act, they considered the Orphan Works problem, but chose to leave it unresolved. They cited "the near impossibility of distinguishing between types of works in fixing a statutory term." That Congress chose to err on the side of protecting private property. Unless this Congress can devise a reliable
On behalf of the Board and members of the Illustrators' Partnership of America