Statement of Brad Holland: Senate Hearing on “Orphan Works: Proposals for a Legislative Solution”

Statement of Brad Holland
Founding Board Member
Illustrators' Partnership of America

Subcommittee on Intellectual Property
Committee on the Judiciary
U.S. Senate

Hearing on “Orphan Works: Proposals for a Legislative Solution”
April 6, 2006

Chairman Hatch, 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, scientific and architectural illustrators, cartoonists and educators. On behalf of these artists, I appreciate the opportunity to address you.

Our chief objection to the proposed Orphan Works amendment is that it is not an orphan works amendment.

An OW amendment would have applied to old work whose authors have abandoned their copyrights. This proposal would legalize the infringement of any work of art, past, present and future, regardless of age, country of origin, published or unpublished, wherever the rights holder cannot be identified or located.

It would permit a user to appropriate the private property of rights holders based on the user’s own definition of “a good faith, reasonably diligent search.”

It would re-impose formalities by forcing rights holders to rely on registries, metadata and notice as a condition of protecting their copyrights.

It would be retroactive, affecting art done over the last 30 years, when artists were told that their work would have the basic protections of copyright law, whether it was marked or not.

It would affect illustrations and photographs disproportionately because trade practice requires that images routinely be published without identifying information, or because artists’ signatures or marks may be illegible, or because information can be removed by others.

It would remove any meaningful remedies for infringement, which are the only means rights holders now have of enforcing copyright.

It would place an impossible burden of diligence on rights holders, because they will never have the resources to police infringement, which can occur anytime, anywhere in the world.

It would interfere with the rights of artists to exploit their work in commercial markets, which would violate the Three-step test of TRIPs.

And it would harm foreign artists by making vast bodies of their work royalty-free in the U.S.

For these reasons and for many more — and with all due respect - we do not believe the statutory language proposed by the Copyright Office is a solution to the orphan works problem. Instead it’s a blueprint for a radically new copyright law.

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 picture is unmarked, it’s impossible to source or date it. Therefore this amendment would orphan millions of valuable copyrights that cannot otherwise be distinguished from true orphaned works - and that would open the door to cultural theft on an unprecedented scale.

In their submission to the Orphan Works Study, Professors Jane Ginsburg and Paul Goldstein warned that orphan works legislation should precisely define the category of "orphan" works. “The broader the category,” they wrote, “ or the lower the bar to making the requisite showing of due diligence, the greater the risk of inconsistency with our international obligations” which in turn reflect ”“longstanding practices that have passed the test of time.”

Many potential users of orphan works have asserted that these works have little or no commercial value. While this may be true of real orphaned work, it is not true of the numberless managed copyrights that will be caught in an orphan works net. Non-profit organizations which assert that only work of little or no commercial value will be affected have not documented their assertions. And other users, who wish to exploit work royalty-free, have every incentive to minimize the value of the work they would profit from selling access to.

We believe the orphan works problem can be and should be solved with carefully crafted, specific limited exemptions. An exemption could be tailored to solve family photo restoration and reproduction issues without otherwise gutting artists’ and photographers' copyrights. Usage for genealogy research is probably already covered by fair use, but could rate an exemption if necessary. Limited exemptions could be designed for documentary filmmakers. Libraries and archives already have generous exemptions for their missions. And if their missions are changing, they should abide by commercial usage of copyrights, instead of forcing authors to subsidize their for-profit ventures.

Therefore we respectfully urge this committee to consider the negative effects that this proposed statutory language would have on free market transactions. And we ask you to conduct further hearings to resolve the specific problem of providing public access to true orphaned works.

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