Yesterday, the Clinic continued its long-time advocacy on behalf of documentary and independent filmmakers seeking orphan works reform by submitting a public comment to the United States Copyright Office on behalf of the International Documentary Association and Film Independent, together with co-counsel Michael C. Donaldson. Earlier this year, the Copyright Office held roundtable discussions and sought public comments on Orphan Works and how they relate to large-scale preservation efforts. This March, Clinic interns Patrick Boyle, Patrick McCormick, and Professor Jack Lerner participated in the roundtable hearings; today’s comment is a follow up to those discussions.
Orphan works are copyrighted works for which the rightsholder cannot be identified or located. Many artists use existing copyrighted works in their creation of new works. Sometimes the artist may rely on fair use, but often he or she needs to obtain a license. When a work is orphaned, however, obtaining a license is impossible: how do you get a license when you cannot find the owner, or even determine who the owner is? This means that if a filmmaker wants to use an orphan work, he or she must do so under threat that someone claiming to be the rightsholder will emerge and sue for infringement.
Legislative reform is urgently needed, and IDA and FIND continue to support the balanced approach to reform that the Copyright Office recommended in 2006: permit the use of orphan works after the user has done a diligent search, while compensating rightsholders who resurface and limiting harsh remedies such as statutory damages and injunctions for those who have done a search in good faith. We are pleased that the Copyright Office continues to pursue orphan works reform, and we look forward to the next steps in this process.
Information on the Copyright’s Office’s orphan works policy making activities can be found here.