Berman Statement on Orphan Works

by Honorable Howard L. Berman, Ranking Member of the House Subcommittee on the Courts, the Internet and Intellectual Property

The following quotes are from the statement of the Honorable Howard L. Berman (D-CA) Ranking Member of the House Subcommittee on the Courts, the Internet and Intellectual Property. They were made May 23, 2006, during the Mark-up of H.R.5439, the "Orphan Works Act of 2006.”

"This bill incorporates many solutions to issues I raised at the hearing. Since that hearing the parties have worked diligently to reach consensus on many of the provisions of this legislation. However, there is yet more work to be done. I still share many of the concerns raised by the visual arts community and hope I can work with the Chairman before Full Committee mark-up to address them further.

"Many of the problems experienced by the visual arts community don't specifically concern orphan works but relate in general, to how the copyright system accommodates their art. Unfortunately, the overlay of the orphan works provision, on top of the current copyright scheme, exacerbates the problem. They worry that many of their works will end up as 'orphan works,' and argue this bill effectively removes their 'hammer' to prevent infringement...

"It is said that 'A picture is worth a thousand words.' The question here however, is how much it is worth in dollars. There remain a number of issues to address where the copyright owner of an orphan work resurfaces - for example, providing enough flexibility in determinations of reasonable compensation, and the necessary level of creativity in the new work to avoid an injunction. An especially important issue is the 'safe harbor' against monetary relief. For uses within this zone, a resurfacing copyright owner can claim no monetary relief whatsoever. We need to make sure that this zone is defined clearly and narrowly so that effective copyright protection is not forfeited...

"Current available picture matching technology is still in its infancy. If one of the motivations of this legislation is to facilitate market development of a database for visual arts - the effective date should correlate to a time where a database could realistically be functional.

"Furthermore, if the Copyright Office is the first stop of any reasonable diligent search - they should be armed with user-friendly search capability. It is time for the Copyright Office to move into the 21st Century.

For the full text of Rep. Berman’s statement, go to: http://www.house.gov/apps/list/speech/ca28_berman/orphan_works_hearing.html