Documentary and independent filmmakers require further protections in their use of orphan works than were recommended by the U.S. Copyright Office, according to a statement filed today with the House Judiciary Committee by eight groups representing documentary and other independent filmmakers, and the public-interest group Public Knowledge.
In their written statement to the Subcommittee on Courts, the Internet and Intellectual Property, the groups said that the risks surrounding the uncertainty whether an orphan work could be used by a small filmmaker “can simply be crippling.” An orphan work is one whose author can't be located. Most small filmmakers refrain from using an orphan work in a film, rather than take on the risk of having to pay damages if the work's author reappears. “As such, the creative work she [the artist] has conceived and would like to present to the public is compromised, and the orphaned work languishes in obscurity and silence.” The statement is a follow-up to a hearing held by the Subcommittee on March 8.
The groups said that providing remedies of “reasonable compensation” without setting a statutory limit is not likely to provide much certainty to independent artists about the potential financial risks of using an orphaned work. A clear statutory cap on damages that would be paid if the author of an orphaned work should reappear, would pave the way to certainty for all parties, and is superior to a “reasonable compensation” scheme.
In addition, denying commercial users a safe harbor which permits them to cease a use in order to avoid paying monetary damages simply enhances that uncertainty. “Not every commercial user is a large movie studio or rich author. Many individual artists, including independent filmmakers, are not endowed with great resources, yet to the extent that their art is their livelihood, their use of orphan works is indeed commercial.”
Filing the testimony were the Association of Independent Video and Filmmakers; Doculink; Film Arts Foundation; FIND (Film Independent); International Documentary Association; Independent Feature Project (IFP); National Alliance for Media Arts and Culture; National Video Resources and Public Knowledge.
University of Southern California Law Professor Jennifer Urban, who was counsel to the groups, said: “The work of independent filmmakers and other artists is fundamentally important to our cultural heritage. My students Kaveh Shakeri and Jason Kakoyiannis and I were delighted to help this incredible group–which works every day to bring critical information and art to the public–convey their ideas and concerns on the important issue of orphan works to Congress.”
Brian Newman, exec. dir. of National Video Resources, said: “The filmmakers we represent comprise a unique group – those who often want to utilize an orphan work in their creative endeavors and those whose work could theoretically become an orphan work. We believe the changes we propose to the Copyright Office's recommendations provide an appropriate balance between the needs of creative individuals and the rights of any surfacing rights-holder.”
Gigi B. Sohn, president of President Knowledge, said: “We hope Congress will recognize the need to provide certainty to filmmakers and other artists by providing a statutory cap on damages that should be paid if the creator of an orphan work later appears.”
Lina Srivastava, Interim Executive Director of the Association of Independent Video and Filmmakers (AIVF), said: “AIVF's membership, comprised of independent artists who often work without institutional support, provide a unique and valuable benefit to American arts and culture. We are committed to their ability to fully realize, as well as protect, their creative visions. AIVF therefore supports a change to the recommendations which provides certainty and comfort to artists who utilize orphan works or those who hold the copyrights to them.”
The full text of the testimony can be found at: http://static.publicknowledge.org/pdf/ow-statement-20060315.pdf
Contacts: Jennifer M. Urban
Director, Intellectual Property Clinic
The Law School, University of Southern California
National Video Resources
(212) 274-8080 ph
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