Last panelists and audience questions:
Jay Rosenthal, Recording Artists Coalition: There are four different issues that need more study. The basic idea is good, but we need a bigger tent for creators.
(1) Conceptual problem: There's a lack of accountability for the initial search process. It's in the prospective user's best interest to fail. The Canadian system for unfound owners is no good, but in a commercial context at least, we should require people to use professional copyright search companies. Sample clearance has created a whole induistry that can do this for music. (Comment: sounds like bankruptcy reform, requiring you to pay a credit counseling service regardless of why you went bankrupt.)
(2) Particular problem with artists: They're the hardest to find and have the fewest resources to fight the designation. There needs to be an attorney's fees provision to get them the right to contest orphan works claims. Rosenthal likes the idea of a copyright small claims court.
(3) Work for hire/termination rights: This isn't outside the scope of the inquiry because it goes to who is the owner for whom you're required to search. You should have to search for the possible owner of a future interest, if the primary owner can't be found. A work might have two sets of parents, one off hiding and another that will return. (Comments: If the artists and industry directly involved can't figure out who owns the masters, I just don't think libraries are going to be able to cut the Gordian knot. Also, this whole parenthood metaphor is beginning to creep me out.)
(4) Moral rights: The vast majority of uses will be wonderful, but a work could be used in a way that damages an artist's integrity. Most artist fight for approval rights over the use of music in movies. If a label disappears, the artist loses that contractual protection. Imagine the use of music in a porn film – and worse, the proposal compels attribution, so the artist will be blamed. It might not happen often, but would be a staggering blow to a particular artist. Consider adding a small step toward moral rights in US law by allowing artists to stop disparaging uses, whether they're works for hire or not. (Comment: small step or giant leap?)
Eric Schwartz, Smith & Metalitz: Schwartz wanted to make some practical points. He's worked with orphan books and film clips – nothing happened to the users and nothing will, because those works were orphans. Section 412 is the starting point: you can usually determine the registration status of a work. When statutory damages and attorneys' fees are unavailable, ultimately you'll be okay. (Ah, Holmes's bad man! What with the libraries and their risk aversion, I'd almost forgotten about him!)
Still, there is an orphan works problem. Preservation is allowed under section 108, and there's fair use, but those aren't convenient – section 108, for example, doesn't cover online access. Everyone wants orphans to come work for them, but no one wants to praise orphanages – they exist because libraries etc. have spent millions on retention and preservation.
Overall, Schwartz likes what the Office did, focusing on (1) facilitating voluntary licensing and (2) ensuring safe steps if (1) fails. The burden of proof and search obligations are in the right place: on the user. Reasonable search has to be different for different classes of works because licensing is different in each. The Office could rejigger the proposal to make clearer that reasonable search varies. A higher threshold for photos and graphics might be appropriate because they lack collective societies and registries. (Comment: this has to be a higher standard for pursuing what information you have, right? Because you're a lot less likely to have that information in the first place, and that's very hard to change by setting a high standard for search.) Maybe born-digital works will make search easier, but that hasn't happened yet. These steps may be inconvenient, but you are using anotherr's work.
Unpublished works are a concern: the proposed rule is antithetical to the civil law system. The right of divulgation is a problem, which needs to be watched.
Congress should also spend the $35 million to put the Copyright Office database online, as a starting point.
As to the distinction between commercial and noncommercial uses, if an archive spends $20,000 on restoring a film, it will never recoup its costs even if it sells copies. We should give it the ability to count the production costs (I wasn't clear whether that meant treating its uses as noncommercial or simply saying that a reasonable license fee would only kick in after restoration costs were recouped). This is fair because, but for their efforts, the material wouldn't exist.
On derivative works, the proposal needs clarification. Incorporating photos into a movie set background isn't transformative, but no injunction should issue in such cases either.
Jennifer Urban, USC Law IP Clinic: The clinic represented independent and documentary filmmakers – follow-on creators -- in the comments. These filmmakers hope for commercial success but aren't assured of it; they depend on copyright themselves, but have limited resources and budgets.
Reasonable compensation is a worry. The Copyright Office has tried to define it, but it's still difficult for small users who lack resources and lack the ability to spred risk. They're putting their films on credit cards. An E&O insurer, despite the reality of the situatin with respect to unregistered works, will be a conservative gatekeeper, and it's dealing with lots of filmmakers who are competing for insurance. Thus, a damages cap is quite important. Attorneys' fees for bad faith make good sense; also a small claims court. She's also willing to consider some sort of affidavit or statement of good faith, as long as the standard is flexible.
Question: From a lawyer who works with jewelry and textile designers: copyright information is taken off of works and knockoffs are produced in Asia. How can we deal with that?
Answer from panelists: That's the same problem as with illustrations and photos – it's hard to identify the source. The pirates certainly aren't performing due diligence. (In other words, not really an orphan works problem.)
Question from me: The Report says that only a handful of comments addressed attribution, yet it's half the proposed solution. Why is that?
Answer from Copyright Office folks: It came up in the roundtables, and there seemed to be consensus that it was basically fair. Jonathan Band added that attribution makes it easier for orphans to find their guardians – the name of the photographer might enable heirs to appear. Of course, you might get a problem of 7 more minutes of movie credits (kind of like the fine print in ads, useful only to regulators and probably not to heirs). Rob Kasunic said that it's a matter of basic good faith, showing that the work wasn't the creation of the user (query: do people reading historians' works need to be told that?) and also allowing the user and creator to get together. I find the former explanation more persuasive than the latter, since everyone agrees that creators/heirs are extremely unlikely to reappear.
Question from me: Say more about derivative works.
Answer from Copyright Office folks: Does putting a photo in a book create a derivative work of that photo? Case law is unclear. If it doesn't, the proposed language may offer no protection against injunction even though that's what we want. Secondary users should be protected when someone needed to use the work and added new material, but not when they just put one photo with a bunch of others and don't really rely on that particular work. (E.g., Google Print, if Google tried first to find owners.) The Office is struggling with alternative language – suggestions welcome!
Question: What about the problems with visual artists generally?
Answer: One of the points of the Report is that we should try to eliminate the problem in the future. There is an orphan works problem – often you just can't find the owner – and we should incentivize finding aids. You can't herd cats, but you can move their food, and that's what the proposal tries to do.
Question: Mostly people would have to come to DC to search the Copyright Office records, or pay to have it done – how much diligence do you have to do to find a company that disappeared 25 years ago?
Answer: Peter Jaszi said that best practices, sectorally, were a big part of the answer. Jonathan Band: In publishing, thousands of houses were bought and sold over time. The AAP is in the best position to put together family trees; if they did that once, people could rely on it.
Question from Brad Holland: One group tried to create a registry of artists through the Copyright Clearance Center, which didn't cooperate. Illustrators have tried to get together with photographers for a visual artists' collecting society, but it hasn't happened. Why not have Congress allocate money to do it, or give artists ten years before this provision kicks in to let them get their act together? (Comment: see above re: cats. If I told my cat I was going to move her food in ten years, she'd … yawn. She's got more important things to do just this minute.)
Answer from Copyright Office folks: A registry is not just difficult and costly, but hard to adapt to technical change. The Copyright Office doesn't know illustrators' business and licensing models. You guys should design a registry for your own needs to create a functional marketplace. You need a system for credit and collective licensing whether or not we get orphan works legislation. If you're successful, you'll solve a lot of orphan works problems, but there are lots of true orphans now, which is why it's a bad idea to wait. The proposed sunset provision allows adjustments to be made.
Then we were out of time. Once again, Peter Jaszi and his crew created an excellent program.