>> From the Library of Congress in Washington, D.C.
[ Silence ]
>> This panel is going to talk about the reasonably diligent search.
And what it could be, what it shouldn't be,
whether we should have it all.
And I know there's a lot of interested in it
because the first panel seems to be here often too a little bit.
But I think now we all have the opportunity to really kind
of get into the nuts and bolts.
Of what it should be or what it should not be.
And so, I wanted to start with just a really broad question
about what should be-- what should have reasonably diligent search be
vis-à-vis the 2008-- yes?
[ Inaudible Remark ]
Oh, I totally forgot.
Yes. Thank you.
Sure.
[ Inaudible Remark ]
>> -- and they say their name before they answer.
>> Sure. That was a great suggestion from Ms. Prager which is
that we're going to go around the--
around the table and introduce ourselves,
just our name and our organization.
And every time you say something, say who you are
and what your organization is, just for the court--
for the rest for audiences, members,
who might not all be able to get placards.
So, I guess I'll start with Karyn.
You probably know her already but--
>> Karyn Temple Claggett, Associate Register of Copyrights and Director
of Policy and International Affairs.
>> Frank Muller, Attorney Advisor for Policy
and International Affairs.
>> Meredith Jacob, American University and working with Berkeley
on the Orphan Works Best Practices Project.
>> I'm Eric Harbeson from the Society of American Archivist.
>> Krista Cox with the Association of Research Libraries.
>> Amy Sabrin with the National Portrait Gallery.
>> Nancy Prager, Prager Law.
>> Nancy Wolff, behalf of PACA Digital Media Licensing Association.
>> Ann Hoffman, National Writers Union.
>> Alec French representing the Directors Guild of America.
>> Michael Capobianco representing Science Fiction
and Fantasy Writers of America.
>> Kurt Klaus, Attorney at Law in my private capacity.
I'm also in-house counsel at network.
>> Jay Rosenthal.
I think I'm still the Senior Vice president General Counsel
at the National Music Publishers' Association.
>> Ben Sheffner, a Vice president,
Legal Affairs at the Motion Picture Association of America.
>> Jack Lerner here representing International Documentary
Association Film Independent.
>> I'm Greg Cram, the Associate Director of Copyright
and Information Policy at New York Public Library.
>> I'm Carrie Russell from the American Library Association.
>> Sarah Michalak.
I'm Chair of the Board of Governors of the HathiTrust Digital Library.
>> And thank you all for being on our panel today.
And so, back to the question which is since 2008, what has--
'cause there's has been some sort of general landscape change
for the reasonably diligent search.
I note that in our last panel.
We didn't really talked
about technological advancements even thought that was on the agenda.
So, it might be something some people want to talk about now.
But this is kind of a broad and opening the panel question.
If you think the things have change a lot and not the--
not really in the case law, the fair use case law
that we just talked about.
But more and kind of that technical mannerisms
in how we would do a search.
So, can open up the floor to any one who has any thoughts on that.
Any changes?
You want to discuss Mr. Harbeson.
>> Sure. I'll lead.
I thought that one of the things that has changed for us,
for this side of American Archivist is that we've increasingly come
to the conclusion that the definitions of reasonable
in the reasonably doubt diligent search are increasingly
not reasonable.
We have a problem here with the copy right balance is out of balance,
we know that we have-- the problem is not that we have a--
we don't have enough protection, we have too much protection.
And so, were we find ourselves with works that the public is needing us
to use and not being able to.
So, I'd like to pointed to--
>> Sorry.
>> Sorry-- one study for example
that shows how costly the definitions
of reasonable diligence search that we're
in the previous legislation are--
so, the study is with the Thomas Watson papers
of the University of North Carolina.
There were 3,304 letters which were scheduled for digitization.
The university had spent many-- sorry.
So, the cost in searching for the right holders was extraordinary.
Of the3,304 letters, 79 percent of them, they determined we're still
under copyright that-- well, have not entered the public domain yet.
Of those after a considerable search,
only four of those right holders where ever found
after many hundreds of hours of searching.
The total cost would end up being
about a thousand dollars per linear foot.
So, we're looking at archival collections that are several hundred
or even thousands of linear feet.
You have situation that just as not sustainable if we want
to be able to digitize the works.
If we want to be able to make from available for the projects
that the gentleman from the Wikimedia foundation
for example is discussing.
So we feel that a reasonable search to be reasonable has
to be caused effective and time effective enough so that people
who need to make use of the works will actually makes you of the law.
>> Do you think that there have been any sort of databases
or other search tool since 2008 that have help the situation.
Are you saying to think that it's made it harder?
Yes. and anyone else?
>> OK. Ms. Wolff.
>> Well, I think since 2008 and I speak on behalf of a number
of associations that have been involved in the world
of visual images and visual licensing.
I mean I think this associations have came into hearts that it's,
you know, images have never been given appropriate attribution,
they're hard to find and, you know, we haven't send on our hands.
We've been working in support of what's known as PLUS Coalition
to try to make search of visual content
that does not have attribution on be able to be found.
And of course, it's a non-profit.
So the wheels moves slowly because it's, you know,
it's not heavenly funded by any organization.
But many organizations users and I believe just set it
from plots [phonetic] speaking on some others but its content owners,
its libraries, its users,
it's a museums have all worked together to form standards.
And try to move forward knowing that we're moving to a world
where important whether there's orphan works or not to be found.
But it is a big process to register and identify owners
but it's definitely with images having the reverse search is helpful
and I'm getting a registry which is for the next time the agenda up
and running and then get participation in that,
I think will be helpful..
I don't think there's anyone registry that's going
to solve all their problems, I think they'll be needed rehabs.
And again, you will have the issue
with the analog historic work that will take time.
You know, won't have the ability to be ingested as easily.
I mean images currently are now being created predominantly
in digital format.
So that will make something as easier.
>> I think Mr. Rosenthal you have your hand up.
>> Since 2008, certainly advances in content ID technology.
I think are very important in the context
of what we're discussing certainly it is far
from perfect issues with YouTube.
And just user generating content in general which gets back to,
I think a point I made in prior panel
that there are free market solutions here and companies
that certainly should incorporated within whatever best practices,
whatever guidance that an orphan works law could create.
They must be brought into all of these to be able to, you know,
help and make sure that if you don't use this free market,
you know, based solutions.
Well, maybe, you're not really having ado diligent search.
You know, when we talk about these years ago, I raised the issue
that in for the issue of digital samples.
There has always been a market industry
out there of search companies.
That if you wanted to find the owner of somebody,
well, OK, you get to them.
You use them.
Certainly, if we're talking about uses of works
on the commercial basis that needs to be part of it, but I think,
again, these technologies would be very helpful in finding the folks
because that's what we want.
We want them to be found and this is part of the solution in our mind.
>> OK, Ms. Michalak.
>> Sarah Michalak.
I want it to mention in reference to something that Sally Shannon said
in the previous panel, that the 200 hundred works
at the HathiTrust Digital library posted in their orphan works,
you know, our orphan works project.
Did benefit-- that whole process did benefit new uses of technology
in crowdsourcing in this context because a lot
of those works were found this is--
as Sally said she had found two right away.
Many works were identified have rights identification
through that process.
However, the process was--
the project was curtailed because it was discovered
to be an erroneous approach to defining-- to identifying rights.
Having said that, we at HathiTrust continue to believe
that most works are findable and that a diligent search depending
on what kind of subject area it is, what community
that the material comes from.
And on the skill and capability and intuition of the searcher,
most searches under those circumstances will be successful
and rights holders will be identified naturally,
there are some exceptions.
But we feel that since there is a strong record of library succeeding
with searches for orphan works, it is not necessary
to prescribe minimal search approaches or try to define
in detail what a basic search should be,
a truly diligent search should be.
>> I have a follow up.
>> So do I.
I think and a lot of people really do.
I made I may speaking from other people this question but.
So, if you can explain a little bit about what happens, what--
I guess why where you guys are not able to find the authors
at some other people where?
And why you think that experienced wouldn't lead
to having some sort of guidelines.
>> The idea in the beginning was to put up a couple of hundred works
that Hathi felt was-- were not, there were truly orphan works.
And very shortly, very short period they discovered
that they may have been-- they may have appeared to be orphan works
but in actuality, they were not.
Because right holders corresponding with the library.
And again, with the benefits of proud searching, people who knew
who the copyright holders where, spoke up.
So, they begin to realize that they were listing works that needed
to have more detailed rights searches.
And they took them down saying
that that approach orphan works was not a good way to go.
And those works are-- orphan works are now treated as in copyright
and they did to the library, so.
>> And I just-- I did have kind of slight follow up on that, although,
we want to make sure to hear from everyone.
But do you think in light of the fact that, you know, after,
you know, the works were listed.
You were able to get through crowdsourcing and other contacts,
some guidance in terms of what copyright of works were included
and where-- who were the authors and owners of those
who works would guidance about crowdsourcing or who
to contact some type of best practices that had been taken
into account, the prior with that have actually helped you think
in terms of reducing the likelihood that some of the orphan works
that you posted were in fact erroneously posted.
>> I would say not.
We are opposed to having minimum searching instructions
or directions.
We feel that there is so much priority among all
of the different kinds of works that could be called orphan works today.
That the searchers need to be able to make decisions depending
on their sense of how which sources to use.
And it is true that some works require many,
many, many hours to determine.
But in the end, most work can be--
most at least printed in publish works can be identified.
Right holders can be identified.
But we feel that the searcher on the ground, so to speak,
needs to have a complete freedom to an intuition
and knowledge to complete the search.
>> Thank you and I think we have a couple
of comments actually more than I thought.
And so we're going to go with Ms. Prager, Mr Lerner,
and Mr. French, and then Ms. Cox.
So Ms. Prager?
>> Yes. And one of the challenges that I'm hearing today is that,
this conversation seems very geared toward libraries.
Let's talk about the real world and real users outside of libraries,
because librarians have special skills for searching.
I'm a lawyer, I'm hear on behalf
of my own experience representing arrange
of clients including a very important cultural participant
who publishes in music, compilation every year
on that highlights the music of the Americans album.
I have learned so much working on that project every year.
There do need to be in minimum standards because without someone
like me involved that can help guide the process.
There are many works that people would deem to be orphans
that would go unheard because my client does everything
on the most favored nations based has brought us.
And they can't use it if they can't get somebody
to sign off on the right.
This is-- I'm OK saying all this.
We go to great links to find these rights holders including at times,
a group of kids that going to studio and Mississippi
or Alabama cut us on, and that's the only song they have ever played
and ever recorded.
And to be able to get the rights to use the song.
There are need to be a minimum standards
because other people would say this good faith.
That's part of the language that's been used
that I pray today is removed from that language.
Because it needs to be a reasonable objective standard
that everyone whether you are librarian with years of experience
or a student documentary filmmaker doing their first student film can
have some assurance that they are doing the research.
That will satisfy if there is ever an orphan works exemption.
And it has to be an objective standard, it has to be something
that we can all look at and say and quantify
that this was a reasonable search.
And since 2008, either have been advances in technology
and we can discuss the registries on the next panel
because there are a lot of issues with that.
But I do really, really hope that we stop saying
that this a library focused situation because we need to look
at it from a broader perspective and that's all.
>> Thank you Ms Prager.
Mr. French.
>> Thanks.
The question was, what is change since 2008?
And I'll talk a little bit about technology
but there have been some legal changes too, you know,
particular the EU directive and I think looking at that
as an instructive practically because one of the things that is
in the directives is that you have to seek identify all rights holders.
That's part of in a sense so, reasonably diligent search their.
That's something that frankly reflects a proposal
that the director guild and conjuncts
with the writer skill have been making in this process since 2005
that you shouldn't at least in a circumstance of motion pictures have
to look for only the copyright owner.
But you should look for other rights holders
like the directors and the writers.
We have and then the European directive,
we are part of that definition of rights holders.
You have to look for us too.
The reason why that's important is one
from a practical perspective are easy to find.
Look at the credits.
The credits were all on a motion picture.
You see who the director is.
You see who the writer is.
You can find us very easily through directly at the guilds
through databases like IMDB.
You can find us if you can't the copyright owner
and we can help you find the copyright owner.
So, it's a practical thing.
It's also just because as rights holders in those works.
We have a whole series of economic creative and human rights recognized
on their international human rights agreements tied up in those works.
So, the idea that if you look for an reasonably diligent search
and don't find the copy right owner and that's all you have to do.
And you don't have the kind of come and find us.
And account for the fact that,
we have under a collective barbing agreements, economic rights,
residuals, health and pension contributions that go
on for the life of the work.
That we have human rights, that we have creative rights
in our contracts, but also, obviously,
under international agreements.
Now, we should be part of that chain of--
we can help you find the author-- I mean excuse me, the copy right owner
but you also should have to come and find us because we have rights tied
up in this that need to be accounted for other
that the rights of the copyright owner.
>> OK. Mr. Lerner.
>> Thank out.
I want to commend Ms. Prager for commenting that this is only
about libraries, although, I think libraries are more real world today
and more relevant to the real world today than ever before.
But I represent a group of creators that depend
on copyright protections for a living.
And we're here today because an orphan works solution will benefit
the creative community and society at large.
And we think that the best way to do that is through best practices.
And I think one of the differences between the HathiTrust experiments
that Ms. Michalak was talking about earlier, is that best practices
when done properly are created by communities of practice.
People who are both creators and users, so they have an incentive
to try to actually find the rights holder,
I mean a lot of people want a license.
That's what they want to do.
And we're just unable to do that.
And so, we think that if you have an orphan work solution,
and particularly, if you have best practices, you'll actually end
up with more people getting licenses and more being able
to actually monetize their content both as original rights holders
and it's downstream creators who want a license content.
I don't think-- to answer your question because we're still
on the first question, right?
But to answer your question, what's happened now is that a lot more ways
to find rights holders are developing everyday.
And I'm happy to see Ms. Wolff here.
We talked about this in 2012, the MPAA talked about this in 2012.
There's a lot more different ways to find rights holders.
And all of these should be rolled into best practices.
But one of the things that we don't want to do is have an ossified,
or a slow, or a cumbersome regulatory regime that can't keep
up with all of the developments.
So I think we need lean, generally applicable principles
that folks can then go into the private market
and develop best practices around.
And then actually begin to monetized those best practices
or not monetize them by actually use those best practices.
And Brad Holland [assumed spelling] said the market can move faster
and we agree, right?
But the difference is that, that we think that the way to do
that is through best practice.
I want to say one other thing in response to Katy's question.
And that is that we have-- not only have more ways
to find rights holders develop
and are continuing develop very, very, rapidly.
But also more orphan works are now available than ever before, right?
Not just because of the library projects
but because of lots of other ways.
Contents being created digitally.
Contents being uploaded.
And all of that is really greatly enriching our ability
to create new works right.
And as rights holders, we're going to be the owners of orphan works.
We're going to be-- my clients' going to be subjected
to the exact same regime.
So we want the same thing and when we went
and created the documentary film makers statement
of the beast practices and fair use, it was with that in mind.
And that's why it's been such a success because you have people
with both of these incentives.
They're creating these best practices and by the way,
not only have-- I not heard of any cases that have been successful.
I actually don't know of any allegations of specific allegations
of misused of any of these best practices.
And I think that's the question we should be asking.
How are they being misused in ways that actually hurt rights holders?
>> I think Ms. Cox, and then Mr. Sheffner, then Mr. Cram.
>> Thank you.
I agree with much of what, what Jack Lerner said
about best practices being an excellent way forward.
Best practices created by the communities that are familiar
with these uses, familiar with the type of circumstances that arise.
And best practices can extract pointed out, can evolve to adapt
to new technologies, new circumstances.
Our fear is that by quantifying or creating these regulations
that are very narrowly defined or rigidly defined
that they will not be able to adapt to changing circumstances.
It would be impossible to come up with regulations that will conceive
of every possible circumstance that goes forth in the future.
And we think that with a flexible standard,
you can accommodate different uses, users' circumstances
because the differences between these uses, users,
and circumstances can create differences
as to the reasonableness of the search.
And our fear is also that with rigidly defined standards it can
reduce the use of orphan works and result
in institutions not taking advantage of legislation
and orphan works becoming relatively inaccessible to the public.
Basically creating a chilling effect if they are to narrowly define.
We also note that, you know-- and Nancy mentioned that she feels
like there's a need for a specific minimum standard in order
to accommodate users that are not librarians.
But I will point out that fair use is a very flexible standard
and that's not just used by libraries
but used by all types of users.
So we think that a flexible standard can accommodate both libraries
and other types of users and work really well.
I mean fair use has been called one of the most important safety valves
of the copyright system and that is a flexible standard.
>> I'll let Ms. Prager interdict for a moment.
>> Fair use is not a catch-all for every use.
There are certain uses that are specifically not going
to be fair use and their cases-- so every time you have to go to court.
We need-- I mean so-- Fair use isn't the balloon [phonetic] that's going
to save everyone in this case.
>> OK. I think Mr. Sheffner next.
>> Thank you.
Ben Sheffner with the Motion Picture Association of America.
I wan to take a step back here and talk for a little while
about what we're actually trying to accomplish here.
And what we're trying to accomplish,
I don't think should this be the establishment of some sort
of elaborate system, whether through a legislation
of best practice or whatever.
The point is to facilitate voluntary licensing transactions.
In other words or the flip side of that,
the point is to minimize the population of orphan works.
I do think the best practices can play a major role
and a very important role in doing so.
I do think it's important that there be minimal standards.
You can-- minimal standards and flexibility are not intentioned.
You can have minimal standards and you can have--
on top of that flexibility to do what's reasonable
under the particular circumstances for the particular types of works.
I do think it's important when crafting best practices,
I think it was Jay who mentioned in the last panel
that they do involve all stakeholders.
And I do think-- I don't mean to put at this
on the work on the copyright office.
But I do think the copyright office would be a good forum for coming
up with sense of beast practices.
Of course, they're going to differ between-- among the types of work.
It's one thing to look for the owner of a major motion picture.
It's probably not going to be few if any orphan works.
I realized the situation is much tougher with photographers
and other visual artists.
I do think also that it maybe helpful not to wait
until legislation is actually on the table or pass.
But I think the copyright office, there are actually maybe benefits
for the copyright office to go ahead and start doing this now.
One, it will advance the discussion.
Again, it will help minimize the population of orphan works
by giving people who legitimately want to find the copyright owner,
instructions and guidance on how to do it.
And I think it will also give comfort to certain copyright owners
who may be nervous about orphan works legislation
because they're not sure that the requirements
for a regular search are going to be rigorous enough.
It will give them comfort to see
that these things actually work in practice.
And, I mean, as Jack was alluding to.
Well, you know what?
Maybe there is not much evidence that people are misusing them.
Maybe it turns out that, you know what?
Once they have these best practices,
they actually do a much better job of searching.
So, again, I would encourage the copyright office to see
if there's a way that they could facilitate.
You know, the drafting of such best practices,
again even before legislation is on the table.
>> And we're going to Mr. Cram next.
But before I do, I wanted to say that this is kind of going
into the next kind of question I had.
So Mr. Cram if you want to address what you already wanted to say
as well as this next question.
And everyone else after Mr. Cram, which is basically we talked
about flexible vs, you know, rigid standards.
And people are very concern about having minimums
but as Mr. Sheffner was saying you could have some sort of combination.
And in our last panel somebody mention the DMCA section 1201
which might not be that popular for everybody.
But there could be things in which you could have some sort of baseline
where there are, you know, beyond a good based search maybe a reasonable
person search.
Whatever the case maybe plus, you know,
having someone direct the users to the copyright office
or somewhere else you see, here are what we think,
are we reasonable this time.
It could be thrown rule making or it could be through just our--
we make studies every now and then, as we're doing right now.
And something like that and I wonder how people feel about that both kind
of a combination of the rigid and the flexible as well
as the copyright offices position and that,
as well as other organizations on with
that Mr. Cram I'll turn it to you.
And I think Mr. Rosenthal is next.
>> So I'm Greg Cram from the New York Public Library.
And first thing to say is NYPL doesn't think we can get orphan
work legislation.
We feel really confident with years of fair use decisions coming
down that we feel comfortable to most of our users are going
to be protected by fair use.
What we're really concerned about is an overly prescriptive search
standard we're really concerned
that whatever search standard copy right office comes up with
or Congress comes up with,
won't take in to a count these technological changes.
But you know; six years ago Google images search didn't exist,
reverse image searching didn't exist, we use it now everyday
when we're trying to find rights holders.
So we're really concerned about having a prescriptive search
that calcifies and ossifies that doesn't take
into account some of the changes.
We're also concerned of having--
about having Congress try do tell us what the search standard is.
We think that Congress is probably the slowest body
to make these decisions.
And even the copy right office I think, it would be burned
by the amount of uses and the amount of works that we have
in our collections in the vary types--
various types of works that we have to come up with best practices
for every single type of work.
I mean we are a something of unique a library where we have 44
and half million physical objects in our research collection.
Those things range from photographs of--
home photographs to published works.
And we-- it's really hard for us to imagine a system that takes
into account all of those types of works and the searches
that we require to get there.
>> OK. Mr. Rosenthal?
>> First of all your point about a flexible approach,
I think that probably is the best way to look at all of this.
Depending upon the works that are involved and whether it's commercial
or noncommercial that might be a way to kind of separate the two.
But-- and two points I wanted to make, one is I wanted to join
with Alec and talk about that as part of all of this you know,
best practices due diligent search process.
We have to keep in mind the artist and I want to point
out an example during the last round we brought this to the hill.
And that-- an example of a record label
that you couldn't find the owner.
The owner had fled you know; for tax reasons, whatever.
You know; big legal bills whatever.
But this-- the artist that we're talking about a number
of the releases of this label,
the artist was playing in town that week.
And the thought of an orphan works process going trough due diligent
search where you just stop with the owner might not be the best way
to look at this.
We do have human rights obligations here and we have
to have that as part of it.
And the last point is just to make this even more complicated.
We have to take into account termination rights.
And when you have a situation where you have a, you know;
an owner not being an owner anymore.
How does that fit in to this and this might--
termination rights in and of itself might be the main reason why we have
to somehow bring in to the--
this discussion should artist be part of this search?
And what happens if you find the artist and you don't find the owner
that has to be discussed as well and thought through.
I'm not quite sure what the answer is.
But just to ignore it and not to have that part of the conversation,
I think is the wrong way to go.
>> OK I'm going to turn to Ms. Russell and then Ms. Jacob,
Mr. Harps and Mr. Capobianco.
>> Carrie Russell from the American Library Association.
We've been working on the orphan works stuff since probably 2004.
We're the largest Library Association in the country.
I collect information, case studies from all libraries,
public school academic libraries.
And I have to tell the panel that in my experience,
the efforts that librarians make
to identify a rights holder are very sincere.
And our very broad and encompassing to the point
that you wouldn't even believe what someone would do to try
and find the rights holder.
They also-- if the can't find a rights holder often refrained
for using the work all together.
So I don't want people to think
that libraries are willy nilly digitizing anything that they have.
You know; that they have not trying to actually find these individuals.
In addition, I think we focused a lot just on digitization,
but in our libraries, we also have an educational role.
So often that we having instructors or faculty we want
to use illustration in their class.
We feel they need to get permission.
We can't find the rights holder after diligent search.
So this is also another socially beneficial activity that's going
on with orphan works actually teaching.
Furthermore, I wanted to mention that over the years,
the libraries have been very aggressive
in developing best practices.
And I don't mean just the ARL best practices.
I mean other list of rules and suggestions.
If you look at the 16 page report of the Society of American Archivists
on how to conduct the search,
you can tell that people are really taking this quite seriously.
Meanwhile, our associations are doing things.
We have four years created the actual bibliographic records
that represent all the works that are published.
Libraries have been doing that, we also have been developing tools
to help people find works.
Public domain tools, Stanford's Fair Use site has a number of tools
to try and identify how to find a rights holder.
We have principles for digital contend.
A policy in the American Library Association
that very clearly articulates
that we respect the rights of the rights holders.
So, I want everyone to realize that we do our due diligence.
The problem with setting minimum standards is because sometimes,
you have nothing to do at all.
You might have a work that has nothing on it, a photograph.
You can't identify where it was taken, who took it,
at what time, you have nothing.
So-- if it's a kind of ridiculous to ask people to look for facts
that have never existed in the first place.
So, that's the problem with minimum search.
I'll stop there.
>> I think Ms. Wolff probably have something to say
about the find the photograph but I'll turn to Ms. Jacob
and then Ms. Wolff if you want to say something
in a minute that would be great.
>> Thank you, my name is Meredith Jacob and I just want to start
of by agreeing with Mr. Cram and Ms. Russell
that having a single standard is very hard.
Because, Ms. Michalak, said, you know, in the book's context,
most searches can eventually be successful.
And in our discussions with libraries
and archivists that's completely depended on what types
of materials you're working with.
But it's the types of materials within collection
and the focus of the collection.
And so, for something is like Ms. Russell said,
there is no reasonable search to be done.
Their's really very little place to start.
And in the context of the collection,
you know that if you'd go with an item by item,
search the digitization of the collection for access is impossible.
And so, in those situations, if there is reasonable search standard,
I think it will wall off large areas from the public.
And just to follow on to that I think the other question is,
if you're searching for potential rights holders for objects
that were never created for a sort of public purpose,
it's also very hard to get responses.
So, you might be able to trace a group of letters and find
out who you think the rights holders might be.
But then get a very, very little response rate
from the sort of cold calls.
And so, in that environment having us single reasonable search standard
would be very hard.
>> OK, Mr. Harbeson and Mr Capobianco and Mr. French.
So--
>> So, I'd like to again can agree with Carrie Russell,
we do definitely go through due diligence.
The-- but to go back to Mr. Rosenthal
from the Music Publishers Association, I--
the point about going back to the artist
and keeping the artist in mind.
The study that I mentioned earlier where we had 79 percent of our--
these letters that were of more than 3,000 letters
that were under copyright.
And we found four or we-- the University of North Carolina,
the study found four rights holders among those some 79 percent
of 3,000 were-- of the rights holders that were found most of them
of course were more than happy to let us use the materials.
And of those, most of them weren't even concerned
about compensation or something.
There have been others studies that have suggested this
where with things like letters,
things with family snapshots and things like this.
Where there was never any commercial intent in the first place.
There-- it is no concern on the part of the right holder for at least
from a copyright stand point of receiving any royalties [phonetic]
or anything of that nature.
So, we-- this is why we suggest that there really should be--
Orphan Work solution really needs to take
into consideration whether material was created
with commercial intent or not.
When material was created with commercial intent, of course,
you don't want to go and-- their maybe a--
when materials create with commercial intent
that the standard needs to be different
than when there was no intent in the first place
to exploit the work commercially.
Thanks.
>>. Mr. Capobianco?
>>. Thank you.
Two points, one of the things that we suggested in our submission
to the copy right office is that, part of any best practices
or any Orphan works regime would include
and a free voluntary author registry or database presumably run
by some entity like the copyright office.
So that their was a place for people to actually look
for these Orphan works and the authors of them.
The second point is, and this is going along with what Jay said.
You must be searching for the authors and this may be part
of what was going on with the HathiTrust situation, I don't know.
It would be interesting to see exactly what their procedure was
that led down the path way to their incorrect assumptions.
But in many cases especially with book, text,
artworks the author is the only one who knows who owns the rights.
And in many cases especially when you talking about digital rights,
the author or creator is the owner of those rights.
The publisher either did never license those rights
or those rights have reverted to the author.
So, you know, I don't know if this even sounds
like something unusual to everybody else here.
But it's the author is that you're looking for,
it's not the other rights holders, it's not the publishers,
it's not the licensees, it's the authors.
>> Mr. French.
>> So, assuming were on the second question
about flexible versus rigid.
>> I think so.
>> OK, I guess I'd be a bit of a broken record and can I say,
you know, the European directive I think did a little bit of both.
It certainly has the flexibility
of pushing things off to best practices.
But it starts with the principle that as part of the search,
you have to try to identify all rights holders.
And defines rights holders has not only the copyright owner,
but other rights holders in our case
that would be the director who has economic.
So, I think you can have a mix of both, but I think starting
from the principle, I;ve heard reflected by a few folks.
One of the things you should have
to do I guess I would say it is a minimal standard like they did
at EU directive is you have to identify all rights holders
in the first place and find them.
Then what are their practices after that I think is
where the flexibility comes in.
>> And I wanted to make a statement about a later panel
that I think this might come up again as the types of works
that might be within an Orphan Work solution.
And hearing Ms Jacob talk about the difficulty in planning visual arts,
I'm not sure what the solution is.
I'm sure Ms. Wolff and others, who will be participating
in that panel will have a lot to say.
But I wonder if it's also a kind of a catch 22
because if you have this many problems with a type
of work maybe shouldn't really even be
in the Orphan Work solution at all.
So, you can kind of cut both ways and that that's something
that we really want to pursue.
I have a long list of people who want to talk.
So after Ms Sabrin, Mr. Klaus, Ms. Michalak and Mr. Lerner
and Ms. Hoffman and then Ms.Cox, so we'll start with this, Ms. Sabrin.
>> I'm Amy Sabrin from--
and I'm here of behalf of the National Portrait Gallery were
as a volunteer, I'm over seeing a project to try to identify holders
of rights of Orphan works, I'm a retired attorney.
So, and which brings-- which I want to emphasize that a lot
of public institutions who are--
exist for the purpose of education the public
as to our culture on historical heritage.
Don't have a lot of resources to conduct, you know,
extensive searches and visual images are particularly challenging
as you've noted.
Minimal flexible standards, you know, I think,
they have to be flexible to take in their account,
the type of work that you're looking for.
The age because a lot of--
what we're finding is a lot of older works that are still are probably
within the life of the copyright
but we can identify the author but the author is dead.
Finding the rights holder at that point is very challenging, you know,
so, the standard has to give you enough flexibility
to say what's diligent in that situation as opposed
to what's diligent in another situation.
As lawyer, I would caution however,
that I don't think you're get any more certainty
if you have a flexible standard than you have know with fair use.
You're going to have judge-made law over the--
well develop over time about what constitutes a reasonable diligent
search at any particular situation.
So, I'm not sure it actually does solve a lot of the problems
that we're hoping to solve.
>> OK, I'm going to go to Mister Klaus and before I do that,
I would love to see also how you view things
with the copyright officer or some other entity that might be able
to help with these minimal standards.
So, if you do have-- assuming that there is way to do some sort of,
flexible approach that has minimal plus and richer things in there,
who would it be who would make those decisions?
How would that work and--
>> Right.
>> -- how much you're going to make.
>> So, in a total commercial setting especially the mass distribution
of audio visual works, hitting a standard that's both flexible
and rigid I think is really imperative.
Because what that represents to a mass distributor
of audio visual works is risk reduction in the form of,
if there's a risk or an uncleared right, the network
or whomever the mass distributor is, is not going to distribute the work.
'Cause the risk is too high, the insurance companies won't cover it.
Those will simply exempt them from a policy and the work
that could have been included and distributed to the benefit
of the public, of course, there's a commercial benefit as well,
will not be included in the distributed work at all.
So, by having a standard against to which insurance companies,
for example and television networks can say, you know what,
we've hit the minimum standard here
and there's some flexible items here we could also include in our search.
And have that guidance, I think would facilitate more
so the distribution of works that otherwise will not be included.
>> And who do you think should be involved in coming
up with these more flexible--
>> Well it's-- it could take the form, I think, of whatever you come
out with first as far as the law does.
And then in the form of regulations that might be added--
following forums, revisiting, you know,
what has worked in the past what hasn't.
In the audio visual industry what's important,
book industry what's important.
And in that regard, be flexible and build upon the base
and that could be facilitated to the copyright office.
>> OK, Miss Michalak?
>> I wanted to say something that responded
to both Ms. Russell and Ms. Prager.
Evaluating a work according to the principles
of fair use is not just seeking an excuse to use the work
that as Miss Russell said.
Sometimes fair use reviewed as not say OK, this is a fair use
and the work is not used.
So, I don't want the idea that the--
to remain at the library community just
to use its fair use as an excuse.
There have been-- I'm very familiar with the UNT Project
in the University Librarian at UNT Chapel Hill.
And we have had some objections to digital works
but particularly in that case.
But the objections often have--
always have to do with something other than rights.
They have to do with ideology, with privacy particularly
in a big collection of correspondence.
And the Tom Watson [assumed spelling] collection has offended
some people because his ideology was very difficult to swallow.
So-- and my third point is
that a flexible standard can never cover everything.
Couldn't even sit here and name all the varieties of material that are
out there that worked where the rights can not be identified.
So, the more you try to craft something that is flexible,
it becomes either more and more detailed and therefore more rigid
or it will end up being so general that it really doesn't help for many
of the different kinds of works involved.
>> Mister Lerner.
>> I want to respond and add to something
that Mr. Klaus was saying-- Oh, Jack Lerner--
to say what Mr. Klaus was saying before.
Insurance already operates based on best practice and fair use and so,
what the underwriters do is look at whether someone has complied
with the statement of best practice and fair use
in the film making context.
And they issue insurance based on that.
The private market actually is working based
on these best practices that have been created by the--
by communities of creators who are also users, right?
And so-- and so, that's what we recommend.
The way these standards are put together is instructive
and I thought maybe I would share
that with the group and with our host.
And what we do is we work with small--
to create these best practices,
the people that have created them have worked
with small deliberative groups of people
who are doing this work day in and day out.
Who have become experts on how
to do it appropriately and responsibly, right?
And then, create best practices from those.
So numerous meetings with small deliberative groups.
In this case, it would be clearance houses, footage finders,
licensing experts, people who are in the business
of locating owners, right?
The resulting best practices end up taking that knowledge
and distilling it into what the important points are and sharing
that with the wide groups of people.
And so in the documentary film making context,
what that did was educated film makers
who had no concept of this, right?
And took these users and help them make responsible uses very quickly,
right?
And that's really important education function
that privately created private market best practices have allowed.
And ultimately, we think that-- with the statement of best practices
for a reasonable-- reasonably diligent search,
everybody would be able to figure out not just how
to get their low hanging fruit but maybe the whole tree.
Or as much as the tree is going to be found, right?
And just to respond to what Mr. Rosenthal is saying,
no one is saying and I'm certainly not saying
that that might not include saying, "Look at some of the people involved
with the creation of this work."
I mean, if I have a photo of a person and I don't know
who the owner is, maybe I would talk to the subject of the photo, right?
If there's a book and there's a-- I can't find the publisher,
why wouldn't I look for the author, right?
And so, these are really commonsense kinds of things.
And those are the kinds of things that come
out when you put these best practices together.
And, you know, I want to go back to insurance point for just one second
and that is that one of the key checks on how these--
one of these best practices are going to work.
And one of the things that enabled them to work is that there are lots
of gatekeepers involved who are, to use a term, it was bandied
about a lot in the panel, risk averse, right?
Broadcasters, distributors
and insurance companies are very risk averse, right?
And they've got to sign off on a lot of these uses
and that would happen with film makers.
But I think it would also happen with lots of other groups, right?
So we support-- I mean, I think that the statement
of best practice and fair use.
Not just particularly the documentary film maker statement
but other statements, are the greatest success story in copyright
in the last 10 years and should serve as a model
for how to handle Orphan works.
I think the fact that they've been--
they haven't led to allegations of abuse much, much less to findings
of abuse speaks for itself.
And so, what I recommend the copyright office do is support
something that replicates that experience.
Allow-- support a solution that allows the private sector
to determine the search criteria and then let the courts do their job.
Settle disputes and let the law evolve.
There's been two terms used, one is minimum standards
and one is minimal standards.
I think minimal standards make a lot of sense, right?
Basic standards with flexibility so that they can be applied on lots
of different areas, communities practice and get together
and let the private market take care of it.
And that's going to be the most elegant, the most nimble
and the most flexible solution long term, right?
And ultimately, it's going to get-- lead to a lot more rights holders,
song writers, photographers-- lots of people getting paid.
>> I'm sorry.
>> I'm sorry that was--
>> I didn't mean to cut you off Mr. Lerner.
Continue.
>> No I'm-- Thank you.
>> Ms. Hoffman?
>> I want to speak to the American public if they knew
that people were considering making use of their family photographs
that they're posting on the internet
or their internet jottings or their YouTube videos.
And thinking that they had the right to do it
without ascertaining who owned it.
I think there would be a revolution and I hear--
I mean the use of letters and photographs I think,
is particularly troubling.
I think they don't fit into a discussion of Orphan works.
The other point I want to make, Mr. Lerner went through a number
of directories that are available that people can search
to find out rights holders are.
There are no such directories of creators at this time.
And before we establish standards, we better find lots of ways
and define a lot of ways to locate creators or we will continue
to be left out of the process.
>> Thank you, Ms. Hoffman.
I think Miss Cox was next?
>> So, you know, I think that study since 2006 when a lot
of discussion was being had around orphan works have shown
that sometimes the search can actually be harder than expected.
Sometimes the results are more ambiguous than one might expect.
In particular, just because, one, I don't trust the author,
it doesn't mean that they are identified the right holder
and several panelist mentioned on the first panel that, you know,
the elephant in the room is the age of the work
when you have these extended copyright terms.
Sometimes the, you know, when its life with 70 years
that it's the author's heir where the heir's heirs
that actually are the right holders.
And it's not always easy to identify that but even
where the authors still alive, you know,
sometimes that work has been transferred, you know,
someone else owns the work.
And so, you know, the reason why I think it so important
to have a flexible standard is to accommodate the facts
that not every work is the same, get over the life of the work.
The reasonableness of the search might change.
I think the studied show that particularly
for archival works that it is ambiguous.
It's hard to find those works.
And I think again, as Jack mentioned,
the best practices can accommodate this.
It's not just for having of, you know,
about having a flexible standard
because you can have the flexible standard,
but then allow the user communities to develop these best practices,
we're not saying that a flexible standard results in a free
for all, it's not true at all.
The library community is very conscientious, very concerned
with following copyright rules and has responded to fair use
by creating multiple codes of best practices.
And looking at these, the new technologies that have come
out in order to evolve and change and adapt to these technologies.
Take them into account.
And also to take in new uses and new things that we want to support
like mass digitization and all of that can be accommodated
through flexible standards and best practices.
And also, just one thing that I want it to add to that is we agree
with by Greg said ends from our perspective.
We don't really think there's a need for orphan works legislation,
but if orphan works legislation does come to be, we want to make sure
that it's flexible enough to accommodate all types of the users
and uses and new technologies like now.
>> Before we go to the next question.
I have a follow up that I want to explore.
We talked a lot about the best practices issues.
And I know that they are already existing best practices.
On the last panel, there were some concern about the development
of best practice and then since that some of them didn't actually taken
to account of use of content owners.
So I want it to see in terms of the best practices that we might use
for purposes of a diligence search for example, would that benefit
from some additional support by the copyright office or others
to make sure that they are done in a way that both the users
and the content owners who, obviously, we would be searching
for our comfortable with the type
of best practice guidelines that are developed.
So that's just the question I have.
After the people are waiting, anyone else can respond to that
or the question that's on the table as well.
>> It is a question and I actually going to--
I must going to turn to Ms. Pregar and Ms. Wolff,
so I think both had their answer for that follow up question.
So if you can say what you are going to say or as well as address.
>> [inaudible] 'cause you want to address
that one because-- OK, [inaudible] address.
>> Well, I do see the copyright--
>> Do you might want to say-
>> Nancy Wolff with PACA Digital Media Licensing Association.
A couple things to address,
one I think that the copyright office should play role in filling
with best practices in diligent search because they will
and I think you can take into account all stakeholders.
Because when you have best practices just design by either, you know,
library or those-- if you don't taken do those
at actually own the rights.
You may be missing a lot of ways to find the search.
So I do think that Library
of Congress copyright office is very issued
and should play relevant role.
And going back to maybe some comments from the last section is
that I think there must or there should be some basic guideline
from the copyright office.
And then best practices develop that.
So for example, one a diligent search should be made to that just
if there's no attribution that doesn't mean that no diligent search
at all should be made, you know, something more has to be than just,
there's not a name on a photo.
I mean there are many reverse image on technologies available now.
You can go to TinEye and look up images.
PicScout has a reverse image.
A number of organizations and companies
that have been developing reverse image search.
And, you know, again the purpose of trying to find someone
under orphan works is much different than fair use.
With orphan works, if you do ultimately finds someone that great.
You can ask information, maybe to a license.
And then, if there is orphan work legislation, you rely on it.
And emerging right holder emerges.
They get paid fair market value.
If everything gets lump under fair use, creators
and authors will never be paid anything because,
any time you cant find someone.
You'll does assume, you know, its fair use and even getting back
to the insurance, I mean I bet a lot of works for documentaries too.
And I think betting for fair use and betting
for not finding the available
to find the rights holder are two different things.
And I think, you know, you can't just lump them all in one place.
And the-- I don't know, if this is appropriate this time but also,
it's important that the diligent search is done at the time,
you know, before the use and someone just doesn't try to, you know,
reverse engineer a diligent search afterwards.
>> Ms. Prager, and then [inaudible].
>> Thank you.
And one thing I think that maybe a little confusing here is
that we need a separate digitization which I think increase us point
about fairly use that sort of her--
I mean I don't want to presume for you.
But digitization of collections which, you know, you're all deal
within libraries or dealing within.
I was sort of taking the approach of users of content
for when I redeem noncommercial but of course, I doubt,
I've consider what some of my clients do
as being commercial even though it's a noncommercial context.
So that's extinction of between commercial to me is a little bit
of red herring and also a little bit undefinable.
But I do want to share something with you about orphans
in the music industry because, unlike Mr. Rosenthal
and the cohorts he works with.
I believe very strongly that this has to consider music.
Sound recordings which are not in copyright in the public domain
in the United States and may or may not be subject to federal copyright.
There's a lot of confusion on some parts of pre-1972.
But even post-1972 when there's clearly define copyright
federal production.
Lets say, you want to use a recording of a band from 1975.
And it was recorded on the ABC--
what, wait make that could be reliable.
I made up label number one.
And you have the disk, you have the 78 or the 45 whatever.
You're looking at it.
You go and you research it and you find a clear cut history
in United States that that label
through 16 acquisitions is now part of Sony records.
You contacts Sony whether it's for a commercial
or noncommercial use and they "What?"
We don't have a record of that.
And took record labels, the sound recording companies have not been
incentivize to go back and do a clean title search
of everything in their catalog.
It's easier for them to say no.
There's actually some benefit for saying no to some uses.
If they don't think they're going to get a high value,
it helps their bottom line from an accounting perspective.
Having coming up with a clear approach
to orphan works couldn't incentivize them to go in to their catalogs
and clean them up, and identify.
Yes, we do know.
We do, I'll made up label number one through sixteen acquisitions.
Because right now, I can make a clear--
I can make it argument that there are orphan sound recordings
from 1980 out there, because we can't get the labels
to admit that they own it.
My favorite, I've been asked in other people I know
in industry been asking, you show us the contracts
to show we own that label.
So, but my suggestion also right now is to separate when we're talking
about this sort of identify that there's digitization that used
and then also uses issues by commercial, noncommercial user.
>> Thank you Ms. Prager.
And I think-- I saw-- we have a couple of people Mr. Sheffner,
Mr. Rosenthal, and Ms Jacob.
And I guess when I call on you, Mr Lerner.
The question being about to the best practices, and what you know,
obviously Mr. Lerner has talked about, it was both the users
and the owners who kind of got together
and developed their best practices.
But what other kind of coordination has taken place
between the content owners and users.
And so, I guess I would start with Ms. Jacob.
>> Thanks.
I just want to declare about earlier.
I don't think that rule based on photographs versus music
versus in work, is a good standard.
I do think that there are very different types of words into this.
I just want to back to that.
But on the best practices, I want to agree with Mr. Lerner
that there are really strong tool here, because they do deal
with specific community to practice.
And so, we heard it concerned earlier about, you know,
the issues around the digitalization of letters or family photographs.
And the strength of the best practices project that we're doing,
working with librarians and archivist is that works
with people have experience professional training
and ethical guidelines for dealing those materials.
It's not being created as a vacuum.
So, when these best practices project.
You're working with people who are already really very much
in the winds on how to deal with these types of materials,
then you get to draw in that expertise.
And I think there that the best practices model let's you worked
community by community.
And then certain types of materials, not only the types
of materials but the types of uses.
And so, you can create a closer fit than any sort
of single evenly applied standard but.
>> A more specific question I think they missed.
Typical I got had was after you reach
out to the content industry or content owners.
So when you're coming up with these best practices.
>> On the archival context.
That's interesting question because there really, you know,
in the issue of sort of letters or in the types sort of [inaudible] one
of these collections, there is no content industry.
And that's I think a part
of the problem whether those people are dealing with is that--
it's a very different thing is you have a sort of,
you have the music industry or you have the field industry.
But when you're dealing with things that could include, you know,
working, demos, letters, correspondents, photographs,
constructional manuals, you know, parts of recorded speeches
that there is-- there isn't an industry to work to reach out to.
And I think that there, the community of practice is the source
of information about how to deal with those materials.
>> OK, Ms. Harbeson and I will go to the other side of table.
>> That was actually a lot of what I want to say but I did want
to emphasize to responding to the comment to my left,
the archives community takes very seriously the trust it's placed
in them when people donate letters
and family photographs and like to us.
And so, the archives community spent a lot of time researching
and worrying about the problems that come up when you make very,
very personal documents available to the public,
whether we've been dealing with this
since long before the online access issue is even an issue.
This is something that what research very well.
So, I think that, to the extent that--
I don't think that there's likely to be a revolution if people find
out that we're going to be putting their family photographs
or their letters or correspondents online.
But I think to the extent that there is concern about this,
what we're talking about here is a copyright issue not a right
of privacy issue.
Those are issues that are best that with elsewhere.
>> OK. Mr.Sheffner.
>> Ben Sheffner with the MPA.
One thing that has not gotten mention so for
in the context the minimum search requirements is the copyright office
records themselves.
One thing that we've said in our previous rounds of comments is that,
at a minimum, when people are undertaking a diligent research,
they should consult the copyright office's records registration
and record age.
And I realized that doesn't solve other problem,
if all you have is a photograph going
to a copyright office database is not going
to tell you who the owner is.
But there's lots of situations where it will,
at least we do on the right path.
I just want to commend the copyright office.
I know, you're undertaking studies right now.
But they're modernizing the recordation process ensure they'll
be future proceedings on registration.
I'm sure it's a lot of people in this room
or where a record before 1978 or not even all digitized.
And, you know, I think it gives all of us in this room,
no matter which you're inside at somebody's debates.
We're on-- this for all of us, we should do--
they're doing all we can to support the copyright office
in its modernization--
>> Thank you.
We agree.
>> -- and its modernization efforts.
I realize that you have limited resources.
But again, we should all be doing what we can to help get you more.
And again, the modernization of these records
that making the database is more searchable and more accurate.
Well again, go to minimizing the population of orphan works
which is again, I think it should be the overall goal at this process.
>> I want it to point out just for having some round tables in LA
and may at San Francisco and California, at the end of the month,
Mrs. Sheffner was going to say something out.
[ Inaudible Remark ]
OK
[ Inaudible Remark ]
So we are having a serious around tables and recordation issues
that later this month, and we check other website.
You can see them here, [inaudible] topic.
You can come to those, we love to hear you.
We're running a little on time I think I go
to Ms. Russell 'cause you had your hand up a little earlier.
And then I have one final question for the panel, then we'll try
to get from audience questions.
>> In terms of the copyright office's role in developing search.
I think the copyright office should focus its energy entirely
on updating its records.
Because if people could find, you know, the rights holder,
this would really-- when people are asking want to ask permission,
they're all ready know there uses and fair.
They want to find the rights holder.
They want to engage with that person.
So, I would focus on updating the records.
I also want to point out that with audio visual materials, librarians,
teachers, everybody, they can easily find the rights holder.
The problem with audio visual is
that the rights holder doesn't respond.
And the reason why they don't respond is because, a library
or school wanting to use some footage from a film.
They're not going to be able to really collect the kinds
of money they can versus NBC wanting to use,
you know, footage from their film.
So, they often put the non-profit kind of request over to the side.
And maybe that was-- is a problem that they need to address,
'cause we never fear back for them-- from these people.
>> Thank you Ms. Russell.
And one final question for the panel.
I'm not sure you who wants to talk about this little be is
about the EU directive-- and how over there.
And once you do your reasonably diligent search.
Assume we've all figured it out what is going to be,
and you've done it, and you've found nobody.
At that point, they make a record.
So online, any one can search it and how's going to registry.
And at that point also, other people can kind
of tag along tackle onto that.
And last, the orphan works owner appears.
As I wonder if people had thoughts on making a registry or any kind
of tag along users of orphan works.
Ms. Prager.
>> That was actually something I was going to bring up, but I didn't know
if it was appropriate in this case.
I think that, however, we proceed with an orphan works
in the United States taking the advisement
of how they're doing it in the EU is important.
And making that registry available so that,
it becomes part of the record, you know.
That's part of the problem.
One other things that didn't get brought up in the first--
didn't brought up here is that what we're really talking
about with orphan works is a problem because of the copyright law.
You know, in 1988 when we signed under the [inaudible],
you no longer had to put the copyright sign
on to have a copyright.
And you can't do formalities anymore and all that kind of good stuff.
So, the rights holders and the creators are now the ones
that we're coming back, you know, 20 years later almost been saying--
yeah, well now, your stuff is considered an orphan
so do something about it.
And so if we're going to-- if we go down that road,
then let's make this part of the process.
>> Mr. Rosenthal.
>> Yeah. I would probably, if you're going down the road of trying
to think of using a registry of some kind is again
to look at the free market.
I think what you're talking about here is someone
of a creative comments approach.
Where you would had some kind of a registry.
But I'm not sure whether it would be the government that's the best place
to do it or whether you would have some kind of, you know,
an organization outside of government, handling this kind
of a thing where someone actually-- not just would have an orphan work,
but they believed it's an orphan work we're going to register,
but they maybe, they want to do that.
And therefore, you have an opportunity like in the create
of comments approach where once I register,
I know that all the libraries can use it.
And all the, you know, maybe noncommercial uses.
Maybe even commercial uses that they can go down that road and use it.
And just the last point is where to say to Nancy, I've never heard
of a label disavowing ownership of the track, but I have heard
of tracks where multiple labels claim ownership.
And that's where you had a lot of Mom and Dad.
>> I can show you list.
>> Yeah.
>> I can you show a list.
>> Yeah, though, I understand though--
>> -- from years and years.
And I can also to put you in touch with lots of music clearance--
>> Yeah.
>> -- people will come up with the same issues--
>> Here is the reality.
You have sound exchange out there with databases of sound recordings
and artist as CAPA BMI with song writer.
I think you're probably-- well I'm not saying--
>> I will address the problems with those databases
in the next prop and the next thing--
>> Yes.
>> -- but including in sound exchange where foreign labels
that don't have any rates
to the underline sound recording are collecting the payments
on the royalties because they are listed as the owner of that part.
So, you know, I'm happy talking about--
>> I understand the problem with the sound exchange--
>> I think this might a discussion for a different place--
>> That's a different topic--
>> I want it to give--
>> The point is there's databases.
That's the point.
>> I want it-- because time is short.
I want to give Mr. Capobianco,
Mr. Lerner the last word before I want it to make clear
when I talk about the EU directive.
They don't-- they're not trying to make--
there intend does not appear to be to make a list of things
that people can use freely.
It's more to make a list of works so that the owners can find out--
>> Yes.
>> -- if people are using them.
So, the owners can come and either claim them back
or negotiate of something.
So, it's not an attempt to make kind of a free for all on the use part.
Mr. Capobianco and Mr. Lerner, and then we'll--
>> Yeah. Well, as far as a government run a registry.
I can think of two ways of doing it.
One would be to have a registry
of perspective orphan work publications.
Another words, you'd put your--
put the information on this registry saying I intend to publish this
and they should be, so I guess six or eight month period during
which that would stand up there.
And then, that would give it a chance for the rights holder
of the work to find the-- in other words, reversing the process.
>> Sounds like the trademark, is it?
>> Yeah.
>> They published the pending trademarks.
>> Yeah. Something like that.
And then, of course, what you're just saying, also having an
on going registry of orphan works
that have been demonstrated to be orphan works.
So that someone would not have to redo the search for them
because it would-- this would be permanently labeled orphan works
until someone came forward and maybe and said, "No,
that's not an orphan work."
>> OK, Mr, Lerner.
>> Jack Lerner.
I was just want to respond to Ms. Temple Claggett's question
about the copyright office involvement.
And we do have a lot to say about a registry of those works
but we can talk about that after lunch.
You know, I think the experience
with the best practices has been a good we see
because there haven't been a lot of problems.
In fact, there haven't been a single problem that I can--
that I know of with these best practices.
And so, I think we should replicate that process.
The copyright office could get involve
but I don't think that's necessary.
I think what we want to do is let the private market do its thing
and some people, and some communities,
and some industries will undoubtedly contact rights holder groups
and talk about registries run
by rights holders and so on and someone.
And that should be decided by those industries.
What we don't want to do is another copyright-- excuse me--
photocopying guidelines from the '70s that don't get used ever.
And what we don't want is a Canadian system
that also doesn't get used ever.
So, if you want these to actually get used, the best way to do it is
to let the private market do its thing.
Let insurance companies and other gatekeepers service a check to that.
And ultimately, if you support legislation
that limits remedies what you'll end up doing is super charging
that process in a way that ends up finding a ton of rights holders
that aren't being found yet because of the education function.
And you'll find out-- and you'll end up with a lot of compensated uses
and we think that's the way to go.
>> Thank you Mr. Lerner.
And I think we're out of time at this point.
So, I would like to see if there's anyone
from the audience who had a question.
>> I'm Jonathan Band with the library copyright alliance.
And just very quickly to respond to--
to give my view on the question about the best practices
and who should be involved in that process.
Certainly, in a perfect world, it would be great, if you could have,
you know, if there was an affected industry or group of rights holders.
It would be great if you have the user community sit
down with the owner community and work out best practices.
But again, this is not a perfect world.
What would happen is you would have a, you know, three,
four, five year negotiation.
You either would never reach an agreement or the agreement would be
so complex that it would be useless or would be
so general as it would be useless.
So, again, in this world, a much better solution is
to do exactly what's been happening which is user communities come
up with their best practices.
So far, you know, the owner community has, sort of,
complained about the fact that the user community has come
up with their best practice but they've never actually come
up with any specific objections to those best practices.
But I would suggest that they should come
up with their specific objections.
And then the user could look
at the best practices developed by the user community.
They could look at the addendum or the descent
or whatever developed by the owner community.
And then they do what they think is right.
You know, the likelihood of ever-- anyone objecting meaning,
any owner copying coming out of the woodwork is infinite testing this
small if there is a problem.
At that point, a court could look at it
and see whether the diligent search was performed but the notion
of trying to sort of delay this process at the outset by trying
to basically have the copyright office supervise, you know,
50 negotiations between rights holders
and users I think is just a complete waste of time for everyone involved.
>> I have a question.
A recurring theme in your conversation is the distinction
between commercial and noncommercial uses.
We're talking today in part about orphan works and mass digitization
that aims to put works up on the open internet.
And it makes these works exploitable for indirect uses, for advertising,
data collection, data tracking and profiling of searches.
The advertising and the data collection that goes
on already is very profitable for technology companies.
Should there be a different diligent search standard for isolated uses
and mass uses that in some way, I think,
it's fair to say are always commercial because the indirect uses
that are made by the technology sector.
>> That is a good point, Ms. Pelch [assumed spelling].
That was actually something was raised in some of the comments.
I think the opposite of what you're saying though.
So how many like how months we're saying
that nonprofit enterprises should not really have,
should more relaxed diligent search requirements, although,
in the other hand, if somebody's done profits are probably some
of the people who could do the best searches.
So, it's an interesting theory.
I don't know if anyone wants to briefly talk
about it as in very briefly.
Mr. Harbeson?
>> I'm not sure that I would agree
that all mass digitization efforts are necessarily commercial efforts.
I would say that we definitely feel that any solution
to the orphan works problem that is done by legislatively needs to--
to work both for item level digitization or uses
and collection level digitization efforts
which is how we see the mass digitization.
There has to be a way not only to make a decision based
on an individual item search but also a folder of letters
from a particular person or something like that.
>> And we get some comments Mr. Rosenthal and then Mr. Capobianco.
>> Yeah, just to respond to Jonathan.
I think that the focus here should be to try--
all copyrights should be to facilitate licensing.
So the process of creating best practices,
whether it is before we had a bill like Ben has suggested
or as we get towards the bill and work through.
I think it's just a fantastic thing to do.
The more the content industry can educate the user industry
on where these rights are and how to get to them.
And again, I come back to music and I'm thinking in terms of--
Well, how does a library know about digital samples
within a sound recording that might trigger other ownership issues?
How would you know that unless you really communicate with the user?--
I mean, the content owners
and I think it's a very positive thing to do.
>> Mr. Capobianco?
>> Yeah. To me it seems that the concepts of mass digitization
and digital-- diligent search are incompatible.
There really is no way
to do a diligent search in a-- on a mass basis.
It has to be an individualized search.
>> And then I think we have one final question from the audience.
Mr. Henson.
>> Hi. David Henson, UC Berkeley.
So, there were a number of comments on this panel about the EU directive
and the kind of approach that it took to diligent search has kind
of combined the minimum standard
with some other things built in there.
And I just wanted to give a word of caution about that
because from what I have heard so far, from European libraries
and being involved in workshops there and things like that,
is that they view that approach.
And at least the standards that are built into the directive right now
as being-- for the most part, unworkable for them
and not very useful at least for digitization efforts.
That's notable because the EU directive is aimed primarily
at libraries and archives and other non-profit uses like that.
So, I think, in terms of the copyright office studying that,
it would be well worthy effort to talk to European institutions.
Not the ones that were involved with passing the directive but those
that are actually impacted by and trying to use it to assess whether
that is an effective approach.
Because from what I've heard so far is not.
>> This has been a presentation of the Library of Congress.
Visit us at loc.gov.