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Home  Legislation CEO of Professional Photographers of America Testifies on Orphan Works
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CEO of Professional Photographers of America Testifies on Orphan Works |
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Written by Jim Hunter, Editor-in-Chief/Chief of Operations
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Wednesday, 08 March 2006 |
Editor,s Note: During a hearing by the U.S. House of Representatives Subcommittee on Courts, the Internet, and Intellectual Property on the proposed "orphan works" legislation, David P. Trust, CEO of Professional Photographers of America (PPA), delivered the following written statement and gave a shortened version of his written statement during his verbal testimony before the subcommittee. The chairman of the subcommittee is Lamar S. Smith of Texas. Howard L. Berman of California is the ranking Democrat.
More information about the Subcommittee on Courts, the Internet, and Intellectual
Property can be found here.
In addition to David Trust's testimony mentioned above,
yesterday's testimony from Jule
Sigall, Associate Register for Policy and International
Affairs, Copyright Office of the United States, Allan Adler, Vice President for Legal and Government Affairs,
Association of American Publishers, Inc. (AAP) and Maria A. Pallante-Hyun, Associate General Counsel, Guggenheim Museum can
all be found at this link:
http://judiciary.house.gov/oversight.aspx?ID=221
Mr. Chairman, Ranking Member Berman and members of the committee, thank you for the opportunity to testify regarding the Copyright Office’s proposal on orphan works.
As the CEO of Professional Photographers of America, I am here today representing 33,000 professional photographers. This includes PPA and it affiliates, as well as three other organizations that have endorsed our testimony: the International Association of Professional Event Photographers, Commercial Photographers International and the Student Photographic Society.
According to the latest available data, professional photography is a nearly $18 billion a year industry. While the industry as a whole is a robust contributor to the economy, the individual businesses that make up the industry are fragile. The 129,000 individual professional photographers in the United States are quite literally the copyright owner next door. They work an average of 45 hours a week and earn less than $35,000 a year. As middle-class Americans and entrepreneurs, photographers typically work in studios having less than three full-time employees and they can be found in every Congressional district.
While they are among the smallest copyright-owning businesses, photographers also produce a higher volume of works than other artists. While almost all other copyright industries are based on the mass distribution of a limited number of relatively lucrative copyrights, a photographer will create more than 20,000 works a year with each copyrighted image having a relatively modest dollar value.
Because of these business conditions, we believe photographers are also the group most likely to have their works fall into the orphan category. While some groups would have you believe that all orphan works are willfully abandoned, the truth is that a photographer or other visual artist who marks his work and takes every reasonable step to make himself known to the world can still have his images labeled as orphans. In the commercial context, this occurs with alarming frequency when images published in editorial or advertising spreads are not properly credited. For the retail photographer, the threat comes from both unauthorized copies that do not contain attribution, as well as clients who make the photographer’s contact information inaccessible by doing perfectly innocent things like gluing images into albums.
This susceptibility to having their works labeled as orphans and the business model dictated by the marketplace, means that a change in the law that might only cause a ripple for a large corporate copyright owner is enough to capsize the earning power of photographers and other independent visual artists.
Unfortunately, we believe the Copyright Office proposal on orphan works, while certainly well intentioned, effectively tosses independent visual artists over the side of the copyright boat.
The fact remains, and the Copyright Office acknowledges in its report, that individual copyright owners often find it impossible to gain any sort of meaningful relief under the current copyright statute. The orphan works proposal makes a bad situation worse by exponentially increasing the risks for individual copyright owners who are forced to pursue an infringer in court.
That being said, PPA does not oppose the creation of a properly constructed orphan works regime. Such a system would still limit damages against infringers who have made a reasonable, good-faith search for the current owner of a work and have failed to locate them.
However, it would also recognize the value of an artist’s work and provide a mechanism that makes it economically feasible for artists to enforce their rights against infringers who refuse to pay a reasonable royalty.
Before providing PPA’s proposal for such a system, we offer our comments and suggestions on the original proposal by the Copyright Office.
SECTION 514(a): Search and Attribution Requirements
We believe the Copyright Office’s requirement of a good faith, reasonably diligent search combined and attribution when possible, provides a solid framework for determining if a use qualifies as an orphan work.
However, we do have two reservations regarding this section of the proposal. The first comes not from the statute itself, but from the Copyright Office’s unwillingness to lead groups of creators and users to develop guidelines to assist courts in determining what constitutes a “good faith, reasonably diligent search” and when attribution is appropriate.
We agree wholeheartedly with the assessment that a statutory definition of a good faith, diligent search would be too rigid; however, the Copyright Office’s notion of allowing various user and artists’ groups to develop their own criteria independent of another provides too much opportunity for confusion and chaos. By having multiple “reasonable” search standards within the same industry, the Copyright Office proposal increases the probability of conflicting judicial decisions. This lack of guidance will make it more difficult for people of good faith to know when their search is sufficient, and allows those with less than noble intentions an opportunity to skirt the law.
While the development of search guidelines under the oversight of the Copyright Office is our preference, PPA is also willing to consider the inclusion of very concrete examples of what does and does not constitute a reasonable search in the legislative history of any orphan works bill that is passed. While such legislative history would not be all-inclusive, it would provide at least provide some minimal guidance to judges and yield greater predictability in their decisions.
Our second concern deals with the language of the subsection on attribution. We believe the requirement of attribution when “possible and as appropriate” serves the goal of making it easier for the rightful owner of an orphan work to discover its use. However, there have been some concerns regarding the possibility that a user would accidentally mislabel a work. The concern is that subsequent viewers of the work might be misled as to the true identity of the work’s author. In order to mitigate this problem, PPA proposes that in addition to requiring attribution when appropriate, the statutory language should also require that user indicate that the work is being used as an orphan work. This will provide a clear signal that any attribution of ownership is provisional and should not necessarily be relied upon by subsequent users.
SECTION 514(b)(1): Limitations on Remedies: Monetary Relief
The limitation on remedies section is where we feel the Copyright Office proposal falls apart. While we firmly believe that some reduction in available damages is both necessary and desirable in an orphan works setting, those damages must also be accessible.
The language of the proposed statute puts the burden on the copyright owner to prove their work had fair-market value and creates a rapid race to the bottom when it comes to compensation for artists. Under this proposal, the less an infringer pays for other photography, the more advantageous their position when defending against an infringement claim.
The entire approach to this issue turns the traditional assessment of copyright damages on its head. Rather than look at the harm done to the copyright owner, this proposal attempts to impose the terms of a fictional transaction that looks primarily at what a reasonable buyer would have been willing to pay. In addition to giving a “buyer’s veto” to an infringer, this approach completely ignores the fact that different artists use radically different business models. For instance, large corporate owners that license millions of royalty-free images a year, semi-professionals who are just happy to be published somewhere and independent professionals who normally sell only limited usage rights all suffer differing degrees of harm when their work is infringed. Unfortunately, the proposal at hand forces all of these copyright owners into a single mold, without regard for their individual circumstances.
In addition to ignoring the damage to the copyright owner, limiting compensation to a “reasonable royalty” creates a system in which it is impossible for independent artists to enforce their rights. While a “reasonable royalty” seems perfectly rational in theory, the reality is that when you are paying hundreds of dollars an hour in legal fees, the damages in this proposal become worthless. For almost all visual artists, an orphan works infringement will never generate enough in damages to make a suit economically viable or even to make the threat of such a lawsuit credible. As such, the Copyright Office proposal provides no incentive for an infringer to voluntarily pay for their use of an orphan work. We believe that any orphan works legislation must provide for compensation that is accessible in the event that an infringer refuses a reasonable request for payment.
If the “reasonable royalty” standard is ultimately adopted, PPA recommends that in addition to providing some cost-effective mechanism for collecting damages, that the burden of proving damages be shifted so that the only evidence the artist needs to come forward with is the amount the artist, or an artist who is similarly situated, would normally charge for such a use. The burden would then be on the infringer to show that the claimed royalty is not a reasonable one.
While the reasonable royalty approach to damages is problematic, it pales in comparison to the damage that the elimination of all monetary relief for uses without any purpose of direct or indirect commercial advantage.
This provision ignores the fact that for many photographers eliminating monetary relief for non-commercial uses destroys the economic value of their works. That is to say, for the vast majority of professional photographers, allowing non-commercial personal use copying of purported orphan works would ravage the entire market for their work.
In addition, most photography infringements have long been completed by the time they are discovered, so requiring that an infringer cease the infringement is, at best, meaningless.
This provision is particularly harmful in that it traps artists who make every reasonable effort to make themselves known to the world, but who fall victim to a third party who fails to properly identify the artist when distributing the work.
Two brief examples:
Scenario A: A wedding photographer provides images to a client and properly marks the work. Later, the wedding client places the images in an album using adhesives that make viewing the copyright information impossible. A few years pass, and the memory of the client becomes clouded as to the exact identity of their photographer. At that point, the child of the client decides to distribute copies of the wedding album to the bride and grooms’ descendants – finding it impossible to identify the photographer from the prints themselves or from his parents – he proceeds with his plan under the orphan works exception. The photographer discovers the distribution of the albums and attempts to seek redress for the infringement.
Scenario B: A photographer’s work is used in an advertising campaign. While the photographer leaves identifying metadata in the digital file and marks any prints that leave her studio, the standard in the advertising world is to not provide a credit line when an agency publishes the work. A subsequent user sees the image and wants to use it. Finding no credit line identifying the photographer, this subsequent user contacts the company whose product was advertised and perhaps even the ad agency, but no one who currently works there can recall who created the image or they simply refuse to take the time to talk to him. The subsequent user then posts the image his personal web page on an online community where the image is copied thousands of times over.
Under the proposed statute, neither of these photographers has a financial remedy for these infringements, even though they took reasonable steps to make themselves known or knowable to all subsequent users. In short, this provision of the statute creates not just a “trap for the unwary,” but for the savvy rights holder as well.
In its report, the Copyright Office alludes to the fact that this particular provision is designed to reduce the uncertainty non-profit libraries, museums and archives face when they display and reproduce massive collections of photographs legitimately believed to be orphaned. We are sympathetic to these concerns, but suggest that the legislative equivalent of a scalpel, rather than a chainsaw, be used to carve out a damages exception to address their concerns.
SECTION 514(b)(2): Limitations on Remedies, Injunctive Relief
In contrast to the section on monetary relief, we believe that the limitation on injunctive relief is a reasonable one. We commend the Copyright Office for taking economic considerations into account and striking a fair balance between the rights of artists and the investment a subsequent user may make in creating derivatives from an orphaned work.
Section 512(c) Affect on Rights, Limitations and Defenses
While we believe that this verbiage may simply be excess, we understand the desire of certain parties to make this point as clear as possible and we see no compelling reason to eliminate it.
Section 514(d) – The Sunset Provision
Based on the public comments of organizations on both sides of the orphan works issue, it appears that there is broad agreement that whatever legislation is passed should not have a 10-year sunset provision attached to it.
Rather than having all of the involved parties repeat their efforts in 2016, PPA supports language that would require the Copyright Office to report to the Congress on the effect of this legislation five years after passage. While it is our sincere hope that we will take the necessary time to develop legislative language that gets it right the first time, such a provision would afford a good opportunity to make any necessary adjustments to the legislation.
Additional Recommendations for Orphan Works Legislation
There are two items not contained in the Copyright Office proposal that we believe must be included in any legislation designed to address the issue of orphan works.
The first item is a window of time between any passage of the Act and its effective date. Such an interval would allow time for owner and user groups to work together and develop reasonable search guidelines. It would also provide an opportunity to for organizations to set-up, promote and populate voluntary artist registries. As such, we recommend that no orphan works legislation become effective until two years after the date of passage.
Our other recommendation is mentioned in the Copyright Office report on orphan works. It is our sincere belief that any orphan works legislation must contain provisions that make it possible for an independent artist to obtain the relief promised by the statute. Anything less would do significant harm to photographers, illustrators and other visual artists. Simply put, filing a federal copyright suit is simply not an option in any area where attorney fees and statutory damages are unavailable. Indeed, many photographers have discovered that under the current law the actual damages from almost all photographic infringements are too low to make a suit economically viable or even to make the threat of a suit credible. While this problem is currently limited to high-volume creators who find it practically impossible to register their work with the U.S. Copyright Office, the creation of an orphan works regime has the potential to put any copyright owner in this unenviable position.
Some creators have suggested making attorney fees available in order to solve this problem. While we believe this to be a reasonable solution, our friends in the user community are quick to point out that the possibility of paying a large award of attorney fees has the net effect of making orphan works unusable.
In order to solve this impasse, Professional Photographers of America proposes the creation of an administrative or other proceeding to decide low-value copyright cases; or, as some have called it a “small claims copyright court.”
The Court of Small Copyright Claims
Elements of our proposal for the administrative adjudication of small copyright claims were included in our initial response to the Copyright Office’s notice of inquiry. While the Copyright Office mentioned that this area was deserving of additional study in the orphan works report, it deemed the idea to be outside the scope of its assigned task. While that view may be technically correct, we believe that without some mechanism for making “reasonable royalty” damages accessible to artists, any proposed legislation on orphan works is simply unworkable.
Regardless of the actual mechanism employed, we envision a “court of small copyright claims” that would offer the following features:
If the actual damages claimed by a copyright plaintiff are below a certain dollar limit, he or she may elect to submit the claim to the court of copyright claims, rather than federal district court.
By submitting the dispute to this type of copyright proceeding, the plaintiff will not be eligible for statutory damages.
Damage awards in this proceeding would be tied directly to the value of the infringement. In order to produce a sufficient deterrent to infringement, and to avoid the creation of a de facto compulsory licensing scheme, damages should be set at a small multiple of the actual damages, with a higher damages multiplier applied when infringement is found to be willful.
A defendant in this administrative proceeding who successfully proves an orphan works or innocent infringement defense would only be liable for a reasonable royalty as determined by the tribunal.
All other defenses available under Title 17 would apply.
If the tribunal determines that an infringement claim was brought frivolously, or if the defendant offered no non-frivolous defense, the tribunal may award costs and fees to the opposing party.
Copyright registration shall have no effect on the availability of damages available in this proceeding. However, in order to preserve and further the mission of the Copyright Office and Library of Congress a work must be registered prior to submitting a claim to this proceeding.
We should also point out that such a copyright small claims court could also be useful in deciding disputes related to counter-notifications issued under 17 U.S.C. §512(g). This will allow both sides to get an official determination as to whether online access to a particular work must be disabled in a timely fashion.
Conclusion
Professional Photographers of America is eager to see a solution to the problem of orphan works. However, any legislative prescription aimed at curing this particular ill should be free of damaging side effects that will do irreparable harm to an entire class of copyright owners. As such, we ask the committee to take great care and deliberation before moving forward.
We once again emphasize the fact that without an alternative to federal district court, the damages orphan works proposal will be impossible to obtain. As such, they provide no incentive to an infringer to honor a reasonable request for payment. This factor alone makes the Copyright Office’s original orphan works proposal a vehicle for widespread harm to, and in some cases outright abuse of, the copyright interests of individual owners. We have attached sample legislative language detailing a mechanism that would make it possible to both limit damages against infringers of orphan works, while still making those damages accessible to a legitimate copyright owner.
As we move forward, it is our hope that we can work with all parties to develop a solution that encourages the use of truly orphaned works and provides adequate relief to copyright owners when they surface.
Mr. Chairman, Ranking Member Berman and members of the committee, we again thank you for the opportunity to bring the problems of independent copyright owners to your attention.
PPA’s Proposal for an Alternative to Federal District Court for Small Dollar Copyright Claims (Editors note: This addendum was submitted with the written remarks presented to the committee prior to Trust's testimony.)
PPA proposes that the following language be inserted into any orphan works legislation in order to provide adequate accessibility to damages accessible in those instances when attorney fees and statutory damages are not available.
SECTION ___: ALTERNATIVE PROCEDURE FOR CERTAIN INFRINGEMENTS
(a) In any case where the damages claimed by a copyright owner in relation to a particular infringement are less than $15,000, the copyright owner may elect to submit the infringement claim to an administrative proceeding, as described herein, in lieu of making a filing in federal district court.
(b) Prior to filing a claim with the administrative proceeding, the copyright owner must register his or her work with the United States Copyright Office. There is no requirement that a copyright owner register their work prior to an infringement in order to gain full relief as described in this section.
(c) The Copyright Office, through notice and comment rulemaking, shall develop standardized procedures for the administrative proceedings held under this Act. This shall be done with a focus on providing accurate decisions while minimizing costs involved to all parties.
(d) REMEDIES
(1) Monetary Damages
(A) Damages available to a successful copyright owner in this proceeding shall be calculated as being three times the actual damages. If the copyright owner successfully proves that the infringement was willful, the maximum damages shall be five times the actual damages.
(B) A defendant who proves that the infringement was innocent or that it complied with all of the requirements of 17 USC 514(a) shall only be liable for damages equal to a reasonable royalty as determined by this administrative proceeding.
(2) Injunctive Relief
(A) The administrative law judge presiding over this proceeding shall also have the power to provide injunctive relief identical to that described in sections 503 and 504 of Title 17.
(3)Costs and Fees
No costs or attorney fees shall be awarded in this proceeding unless the administrative law judge presiding over the proceeding shall determine that the losing party brought their claim or defense frivolously or in bad faith.
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Last Updated ( Friday, 10 March 2006 )
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