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28–336 PDF 2006

S. HRG. 109–541

ORPHAN WORKS: PROPOSALS FOR A LEGISLATIVE

SOLUTION

HEARING

BEFORE THE

SUBCOMMITTEE ON INTELLECTUAL PROPERTY

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

APRIL 6, 2006

Serial No. J–109–68

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

SUBCOMMITTEE ON INTELLECTUAL PROPERTY

ORRIN G. HATCH, Utah, Chairman 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

DIANNE FEINSTEIN, California 

HERBERT KOHL, Wisconsin 

RICHARD J. DURBIN, Illinois 

BRUCE ARTIM, Majority Chief Counsel 

BRUCE A. COHEN, Democratic Chief Counsel 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS

Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1

prepared statement .......................................................................................... 83

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 3

prepared statement .......................................................................................... 88

WITNESSES 

Cross, June, Documentary Journalist, and Assistant Professor of Journalism, 

Columbia University, New York, New York, ..................................................... 8

Holland, Brad, Founding Board Member, Illustrators’ Partnership of America, 

Marshfield, Massachusetts .................................................................................. 10

Pallante, Maria, Associate General Counsel and Director of Licensing, The 

Solomon R. Guggenheim Foundation (Guggenheim Museum), New York, 

New York .............................................................................................................. 12

Perlman, Victor S., Managing Director and General Counsel, American Society of Media Phographers, Inc., Philadelphia, Pennsylvania ........................... 7

Prelinger, Rick, Board President, Internet Archive, San Francisco, California . 16

Rubin, Thomas C., Associate General Counsel, Microsoft Corporation, 

Redmond, Washington ......................................................................................... 14

Sigall, Jule L., Associate Register for Policy and International Affairs, U.S. 

Copyright Office, Washington, D.C. .................................................................... 5

SUBMISSIONS FOR THE RECORD 

Advertising Photographers of America, Jeff Sedlik, Chief Advisor on Licensing 

& Copyright, George Fulton, National President, and Constance Evans, 

National Executive Director, White Plains, New York, letter and statement 29

American Federation of Television and Radio Artists, Kim Roberts Hedgpeth, 

National Executive Director, New York, New York, prepared statement ....... 53

American Society of Composers, Authors and Publishers, New York, New 

York, prepared statement .................................................................................... 55

Cross, June, Documentary Journalist, and Assistant Professor of Journalism, 

Columbia University, New York, New York, prepared statement ................... 62

Holland, Brad, Founding Board Member, Illustrators’ Partnership of America, 

Marshfield, Massachusetts, prepared statement ............................................... 85

Pallante, Maria, Associate General Counsel and Director of Licensing, The 

Solomon R. Guggenheim Foundation (Guggenheim Museum), New York, 

New York, prepared statement ........................................................................... 89

Perlman, Victor S., Managing Director and General Counsel, American Society of Media Phographers, Inc., Philadelphia, Pennsylvania, prepared statement ...................................................................................................................... 95

Prelinger, Rick, Board President, Internet Archive, San Francisco, California, 

prepared statement .............................................................................................. 100

Recording Artists’ Coalition, Berliner, Corcoran & Rowe, LLP, Jay Rosenthal, 

Esq., Washington, D.C., prepared statement ..................................................... 103

Rubin, Thomas C., Associate General Counsel, Microsoft Corporation, 

Redmond, Washington, prepared statement ...................................................... 109

Sigall, Jule L., Associate Register for Policy and International Affairs, U.S. 

Copyright Office, Washington, D.C., prepared statement and attachment ..... 115

(1)

ORPHAN WORKS: PROPOSALS FOR A 

LEGISLATIVE SOLUTION 

THURSDAY, APRIL 6, 2006 

U.S. SENATE, 

SUBCOMMITTEE ON INTELLECTUAL PROPERTY, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:07 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, 

Chairman of the Subcommittee, presiding. 

Present: Senators Hatch and Leahy. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. Well, good afternoon. We welcome all of you 

to today’s hearing on orphan works. With the panel of experts we 

have before us today, the Subcommittee will be, in my opinion, in 

for a lively discussion on this important topic. It is very important, 

and we are finding that it is becoming more and more important 

as we continue to look into it. 

I would like to begin by providing some context for the witness 

testimony, while reserving as much time as possible for a panel 

discussion. As most people interested in this hearing will already 

know, the term ‘‘orphan works’’ generally refers to copyrighted 

works for which the owner is either not known or cannot be found. 

With most forms of assets and physical property, an owner is typically easy to identify with reasonable efforts. For obvious reasons, 

identifying the owner of a copyrighted work is much more difficult 

in many cases, especially when information about the copyright 

holder is not publicly known or incorporated into the same end 

product that contains the work itself. 

With very rare exceptions, many of which result in police intervention, whoever is living in a house or driving a car is either the 

property owner or someone with a personal or contractual relationship with the owner. The same is not true in the intangible world 

of copyrights, where the owner of an individual book, videotape or 

photograph generally does not hold the copyright to the underlying 

text or content. 

Historically, copyright information has been included in the end 

product. For example, the copyright holder will frequently be listed 

in the movie credits, including album liner notes, or printed on the 

back of a photograph. However, with the advent of digital and 

Internet distribution models for copyrighted works, it has become 

2

more difficult to attach such copyright information to the copyrighted work itself. 

These problems have been exacerbated by two sets of changes in 

copyright law. First, because of the extension of the copyright 

terms, many works are protected by copyright for decades after the 

author has died and long after they cease to have any significant 

economic value. The second set of changes occurred as a result of 

our accession to the Berne Convention, which prohibits conditioning copyright protection on formalities such as registration or 

renewal. Because original works receive automatic copyright protection without the need for the owner to register the work, there 

is no centralized registry that can be used to identify copyright 

holders. 

As a result of these difficulties, it appears that a significant number of works are protected by copyright without any reasonable or 

effective way for potential users to identify their owners. As a result, the public loses ongoing access to and use of these works, 

without any corresponding benefit to the author. As the Copyright 

Office concluded in its recent report on the subject, such an outcome is not in the public interest, particularly where the copyright 

owner is not locatable because he no longer exists or otherwise does 

not care to restrain the use of his work. 

With respect to virtually every other type of property that receives legal recognition, there are either equitable doctrines in the 

law or statutory provisions addressing this type of problem. In 

other areas of the law, the rights of an owner are limited by things 

like adverse possession, salvage rights, found treasure doctrines 

and abandonment theories. 

Many believe that a similar concept should be applied to copyright law and the Copyright Office has recommended something 

along these lines. Under their proposal, a user who performed a 

good-faith, reasonably diligent search for the owner prior to using 

a copyrighted work would in most instances have his or her damages liability limited to a reasonable royalty rate. In certain instances, equitable relief would also be limited. 

I tend to believe that this type of approach would be beneficial 

to copyright law and would allow artists, consumers and academics 

the use of many works that have historical, cultural and economic 

value. However, I suspect that we have a range of opinions on the 

Copyright Office proposal, so I look forward to hearing the opinions 

of our panel of expert witnesses. 

But, first, let us hear from the ranking Democrat member of the 

Subcommittee and the ranking Democrat member of the full Committee, Senator Leahy, whom I enjoy working with on these issues 

very, very much because of his own ability to cut through the maze 

and to come up with solutions that really have worked in the intellectual property fields for really the decades that we have been together. 

[The prepared statement of Senator Hatch appears as a submission for the record.] 

Senator Leahy, we will turn to you. 

3

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Well, thank you, Mr. Chairman. As you know, 

you and I have been able to put together some significant bipartisan legislation in this area. As we find more and more in the Senate, it is only the bipartisan legislation that actually has a real 

chance of passing and getting signed into law. 

We are blessed to live in a country with such deep creative roots. 

We have the best music industry in the world, the greatest film industry in the world, the largest publishing industry in the world, 

superb photographs, and we have millions of creative works that 

are born from that. But there are many works where no copyright 

owner can be found. These are the ‘‘orphans,’’ as Senator Hatch 

said. You can’t use them for reproduction, restoration, or adaptation because you can’t find the lawful copyright owners. 

Under current laws, if you can’t find the photographer who took 

your great grandparents’ wedding picture over 75 years ago, no 

matter how hard you search, you can’t have that picture restored 

legally. In an example recently mentioned in the Wall Street Journal, a Civil War historian wrote an article which used several letters and diaries from soldiers. Although a magazine initially agreed 

to publish the article, the publisher pulled the piece because he 

feared litigation arising from the use of those works. They were 

150 years old. 

Orphan works problems have a particularly unfortunate effect on 

older films. Some of them are disintegrating and they will disappear because we can’t find who the copyright owners are. I know 

the particularly vexing issues that confront the professional photographer or illustrator with a great number of works and the difficulty ensuring that others do not claim them for their own. 

I have seen some of my own photographs show up suddenly in 

a magazine, not the one I had originally sold it to or given it to. 

I know what that means. I know the thrill when I see my son-inlaw’s photographs published, but I know he would not be as 

thrilled if the credit was not given either to him or to his organization. 

This situation impacts copyright owners and potential copyright 

users in every industry, from an individual scrapbooker or illustrator to the largest corporation. Senator Hatch and I asked the 

Copyright Office to study orphan works and issue a report on the 

situation, as well as a suggestion for possible legislation. The report came out in January. It is clear that they spent a considerable 

amount of time, a tremendous amount of time on that, and I thank 

them for that. The multitude of comments, both those made to the 

Copyright Office and those made in the subsequent roundtable discussions, show how committed all the interested parties are to find 

a sensible and equitable solution to this conundrum of orphan 

works. 

So I am glad we are having this opportunity to have this hearing. I think it opens up a dialog with representatives of all points 

of view on this issue. And it is not a uniform point of view. I am 

well aware of that, but it is an issue of vital importance. I think 

we can all agree on that. 

4

I have no intention of crafting legislation that harms the creators 

who hold copyrights and who bring so much value to our culture 

and economy. But I would like to see the chance for social and cultural enrichment by enabling use of these orphan works by the 

public. I am afraid that at a time when we are growing so fast as 

a country and when there is so much going on that we miss some 

things that could really speak to what we are as a country, or 

speak to things that will actually enrich our lives. 

So we have a lot of work to do, Mr. Chairman, but if past is prologue, you and I have been able to work through these things before and I think we will here. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman HATCH. Well, thank you, Senator Leahy. I think we 

will. 

Let me just say we have a great panel here today to discuss this 

issue, and before I introduce them I should note that we have departed from the more traditional hearing structure by not having 

separate panels for the Government and industry witnesses. We 

have done this in the hopes that it will allow for a more lively debate among the witnesses. In particular, because most of the discussion today will center around the Copyright Office proposal, I 

thought it would be appropriate to have a representative of that 

Office on the same panel so he could respond to both positive and 

negative comment on the proposal. With that explanation, let me 

introduce the witnesses here today. 

First, we are going to hear from Jule Sigall, the Associate Register for Policy and International Affairs at the Copyright Office. I 

would like to thank Jule for all of the work the Office put into the 

orphan works report that Senator Leahy and I have requested. 

Next, we will hear from Victor Perlman, Managing Director and 

General Counsel of the American Society of Media Photographers. 

We are grateful to have you here, Mr. Perlman. 

Then we will have, after Mr. Perlman, Ms. June Cross, who is 

a documentary filmmaker and a professor at Columbia University. 

We are grateful to have you with us. 

Next, we have Brad Holland, a founding board member of the Illustrators’ Partnership of America. We are grateful to have all of 

you here. I will just quit repeating that each time, but we are 

grateful to have you here, Mr. Holland. 

Senator LEAHY. So if we don’t say it, we are still grateful. 

Chairman HATCH. Yes, we are still grateful. Repetition doesn’t 

always bring conviction here. 

We will hear, after Mr. Holland, from Ms. Maria Pallante, Associate General Counsel and Director of Licensing for the Solomon R. 

Guggenheim Foundation. 

After that, we will receive testimony from Thomas C. Rubin—

good to see you again, Mr. Rubin—Associate General Counsel for 

Microsoft Corporation. He has got a tiger by the tail there in many 

respects in this area. 

Last but not least, we will hear from Rick Prelinger, Board President of the Internet Archive. 

I look forward, and I know Senator Leahy does, to hearing your 

testimony, and we want to thank each of you for taking the time 

5

out of your schedules to be with us today. This is an important 

hearing and we are really interested in what you have to say. 

So we will start with you, Mr. Sigall. 

STATEMENT OF JULE L. SIGALL, ASSOCIATE REGISTER FOR 

POLICY AND INTERNATIONAL AFFAIRS, U.S. COPYRIGHT OFFICE, WASHINGTON, D.C. 

Mr. SIGALL. Thank you, Mr. Chairman. 

Chairman Hatch, Senator Leahy and members of the Subcommittee, I am pleased to appear today on behalf of the Copyright 

Office to testify about solving the orphan works problem. We would 

like to thank Chairman Hatch and Senator Leahy for their leadership on this issue and for commissioning the report on orphan 

works which we published in January. As always, we were very 

pleased to assist the Subcommittee in resolving important copyright issues. 

As you summarized, Mr. Chairman, the term ‘‘orphan works’’ describes the situation where someone would like to use a copyright 

work, but cannot identify and locate the copyright owner. Even 

where the user makes a diligent effort to find the owner, if the 

owner is not found, the user faces a dilemma. She cannot determine whether the owner would permit the use. 

Where the proposed use is infringing, the user cannot reduce the 

risk of copyright liability because there is always the possibility 

that a copyright owner could bring an infringement action after 

that use has begun. In this situation, a productive and beneficial 

use of the work may be forestalled, not because the owner has asserted exclusive rights or because the user and owner cannot agree 

on the terms of a license, but merely because the user cannot locate 

that owner. 

For many users, the risk of infringement liability, even though 

remote, is enough to prompt them not to make use of the work. 

This outcome is not in the public interest, especially where the 

owner no longer exists or otherwise does not care to restrain the 

use of his work. 

Based on our study of this issue, we concluded the following. The 

orphan works problem is real, but it is elusive to quantify and describe comprehensively. Some orphan works situations may be addressed by existing law, but many are not, and legislation is necessary to provide a meaningful solution to the orphan works problem as we know it today. The report recommends with specific legislative language an amendment to the Copyright Act’s remedies 

section. 

Our proposal is motivated by two primary goals. First, any system to deal with orphan works should seek to make it more likely 

that a user finds the relevant owner in the first instance and negotiates a voluntary agreement over the use of the work. Second, 

where the user cannot identify and locate the owner after a reasonably diligent search, then the system should permit that user to 

make use of the work, subject to the provisions that resolve issues 

that arise if the owner surfaces after the use has commenced. 

Our proposed amendment follows the core concept that many 

participants favored an orphan works solution. If the user has performed a reasonably diligent search but does not locate the copyVerDate 0ct 09 2002 11:43 Aug 28, 2006 Jkt 028336 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28336.TXT SJUD4 PsN: CMORC
6

right owner, then the remedies for infringement by that user 

should be limited. Both our written testimony and the report go 

into the specifics of our recommendations, so I will not spend too 

much time on those details now. But I would like to focus my remarks today on the reactions that interested parties have given to 

our report. 

By and large, that reaction has been quite positive. A diverse 

array of copyright owners and users, book publishers, authors, libraries, archives, museums, motion picture studios, record companies, educational institutions, documentary filmmakers and others 

all agree with our conclusion that the orphan works issue is real 

and needs to be addressed, and they agree with the basic concept 

and structure of our proposed legislation. Some of these groups 

have made constructive suggestions for changes to the specific provisions and we are confident that further discussion among the interested parties can resolve any remaining issues. 

Certain groups representing individual copyright owners, however, such as photographers, illustrators and graphic artists, oppose our proposal. They argue that many of their works will be inaccurately labeled orphan works because it is often difficult to find 

the owner of a visual image, usually because the name of the creator is not on copies of the work. 

The Copyright Office records are text-based and in most cases do 

not contain much, if any, description of the subject matter of the 

image, in part because we have eased the registration requirements for photographers at their request. So even if a photographer 

has registered his works, a user may not be able to locate that 

owner. In other words, these groups concede the very problem at 

the heart of the report. A user seeking to locate a photographer of 

an image that has no identifying information on it faces a daunting 

challenge. 

Our proposal provides safeguards for this problem in a number 

of ways. First, in most cases, including all commercial uses, the 

user of the orphan work must pay the copyright owner reasonable 

compensation if the owner resurfaces. Also, the user will not be 

able to continue making use after the owner asserts his copyright, 

except in defined circumstances, and even in that case must pay 

reasonable compensation for that future use. So when critics say 

that our proposal would strip thousands of photographers and 

other visual artists of their rights, that is simply not true. 

Photographers claim that bringing a lawsuit to collect reasonable 

compensation will be prohibitively expensive. We agree that legal 

actions to enforce copyright are expensive, just as any access to our 

court system is costly. However, this problem exists for visual images today, regardless of whether orphan works legislation is 

passed or not. Moreover, there are non-legal actions that photographers and others can take to protect their copyrights. These steps 

include consistently marking copies of their works, development of 

collective licensing mechanisms and deploying technology to allow 

effective searches where the user has only the image and no contextual information. Steps like these will also ensure that visual 

images are locatable and their works do not become orphan works. 

Regarding the expense of litigation, we noted in the report that 

a new small claims procedure might also help individual owners 

7

protect their copyright generally, and also allow to obtain reasonable compensation if their works fall into the orphan category. Last 

week, we offered to study this question in a report to the Subcommittee on potential solutions to that problem. However, the key 

to enhancing copyright protection in visual images is not increased 

litigation, but making it easier for owners and users to find each 

other, which our orphan works proposal encourages. 

In conclusion, many users, especially cultural institutions like libraries, museums and archives, made clear that any orphan works 

solution must include photographs and other visual images, given 

the persistent orphan works problems that exist with these works. 

In fact, orphan works legislation may be the catalyst needed to 

prompt the non-legal, marketplace reforms that will most efficiently address the problems identified by these creators. For this 

reason and others, Congress should not delay its consideration and 

enactment of orphan works legislation. 

Thank you for the opportunity to testify today and I look forward 

to answering any questions you might have. 

[The prepared statement of Mr. Sigall appears as a submission 

for the record.] 

Chairman HATCH. Well, thank you, Mr. Sigall. 

Mr. Perlman. 

STATEMENT OF VICTOR S. PERLMAN, MANAGING DIRECTOR 

AND GENERAL COUNSEL, AMERICAN SOCIETY OF MEDIA 

PHOTOGRAPHERS, INC., PHILADELPHIA, PENNSYLVANIA 

Mr. PERLMAN. Mr. Chairman, Ranking Member Leahy, distinguished members of the Subcommittee, thank you for the opportunity to present our views. I am speaking today on behalf of not 

just the American Society of Media Photographers, but for virtually 

every major trade association for freelance photographers and the 

Graphic Artists Guild for Commercial Illustrators and Artists. 

We absolutely agree that true orphan works are a legitimate 

problem that requires a solution. However, the Copyright Office’s 

proposal would have the practical effect of converting the majority 

of published photographs and illustrations to orphan works. For 

photographers and commercial artists, this proposal is a disaster of 

biblical proportions. It is based on at least two fundamental and erroneous assumptions. 

One is that registered works will not be orphan works, and the 

other is that most copyright owners and authors can be found 

through text-based research. Both of those assumptions are one 

hundred percent wrong as to visual artworks. Many users will have 

in their hands only an image with nothing else to identify it. The 

Copyright Office’s records are not searchable by anything but text 

nor or in the future, and that is not because of easing the registration requirements for photographers. That is a fact of the way the 

system is structured and will be structured in the future. So if you 

have no name, you have no search results. 

Most photographs and illustrations are published without credit, 

attribution, or other way to identify the creator who, for freelance 

photographers and artists, is usually the copyright owner. There is 

virtually no attribution on the Web. In fact, we are told by industry 

8

vendors that 90 percent of the uses of photographs and illustrations on the Web are unauthorized. 

In print media, there are no credits given except for editorial 

uses, and that practice is shrinking. Context does not provide much 

help because the publishers and advertising agencies and corporate 

clients that publish these images have no incentive to retrieve and 

provide data when information is requested. Almost all search capabilities are limited to textual information. That doesn’t help you 

if all you have is a copy of an image. Even the newest image recognition software will work only for digital images that are available on the Web, and that is a tiny percent of all copyrighted images. The result of all of this would be a de facto, retroactive confiscation of copyright for most photographs and illustrations. 

There are other flaws in the Copyright Office’s proposal that are 

set forth in my prepared statement. I urge the Subcommittee not 

to use the Copyright Office’s proposed legislation as the starting 

point for addressing this problem. There are other, better proposals 

suggested in my prepared statement and also outlined in the Copyright Office’s report. 

Freelance photographers and artists are small business people of 

modest means. In the orphan works context, it is a case of them 

against an array of large, powerful organizations representing 

many larger, more powerful and more wealthy corporations and institutions. It is a case not of just David versus Goliath, but of 

David versus an army of Goliaths, and this time, Mr. Chairman, 

David really needs your help. 

Thank you. 

[The prepared statement of Mr. Perlman appears as a submission for the record.] 

Chairman HATCH. Thank you, Mr. Perlman. 

Ms. Cross. 

STATEMENT OF JUNE CROSS, DOCUMENTARY JOURNALIST, 

AND ASSISTANT PROFESSOR OF JOURNALISM, COLUMBIA 

UNIVERSITY, NEW YORK, NEW YORK 

Ms. CROSS. Thank you, Senator Hatch and Senator Leahy, for 

giving me the opportunity to speak to you today regarding the 

Copyright Office’s report on how best to protect the rights of users 

and owners of so-called orphan works. 

The Copyright Office has done a superb job of examining this 

issue from every angle and asking for public response. They have 

considered the ramifications of the various avenues that they have 

proposed. They and you are to be commended for taking so great 

an interest in helping copyright holders and those of us who use 

them find each other. And I am also a copyright holder, I should 

add, so we are all copyright holders. 

We all want to find each other and arrange for fair credit and 

fair compensation. We are especially gratified that you have chosen 

to explore an issue that many might find arcane, the issue of how 

to proceed wisely when faced with work for which no registered 

owner can be found. That problem is not arcane to the majority of 

the thousands of people whom I represent here today. We tell stories using collages of pictures, words and music. We make films 

and documentaries. 

9

As a producer, I have been making documentaries for some 20 

years at PBS’ ‘‘Newshour,’’ for ‘‘Frontline’’ and at CBS News. Most 

recently, I have also been teaching at the Graduate School of Journalism at Columbia University. I depend on copyrights in my own 

work to help me earn a living. So does everyone who is represented 

by the coalition of groups that I speak for today and who are listed 

in my prepared statement. 

We are not lavishly endowed studios, but the producers of independent films, the directors of scarcely funded after-school programs, and the community access directors are struggling to give 

citizens a voice. At a time when more and more information is 

available through more means than we can count, filmmakers find 

it harder and harder to put a sense of history and context into 

their work. Allow me to use as a worst-case example a film for 

which I am best known, ‘‘Secret Daughter,’’ a documentary that I 

did back in 1996, the story of my own biracial family. 

I was born 6 months before the Brown v. Board of Education decision in 1954. My parents separated when I was 18 months old, 

and part of my historical, contextual problem when making this 

documentary was how to find footage and stills that would adequately and accurately present the way the United States looked 

and felt at that point in time. 

I found in an archive 2 hours of unidentified home movie footage 

taken on 125th Street in Harlem outside the Apollo Theater 1 day 

in June 1954. The archive was happy to well me the footage, but 

they did not know who the original photographer was and they 

would not help me find him. 

I need to stop now and tell you what would have happened had 

I been working for a commercial station instead of at PBS. At a 

commercial station, I would have been under much more intense 

deadline pressure to find the original owner of that footage. I would 

have had to provide evidence that I had searched through registered data bases, talked to archivists who are familiar with that 

particular subset of Harlem film in the 1950’s, find the families of 

people that I could have recognized on the street, and asked anyone I might have known who might have had a movie camera in 

1954 to try to find the person who made this film. 

I would have had to document every step of that way, documenting the e-mails, documenting the phone calls, documenting the 

letters. I would have had to show that I performed what we call 

due diligence, which is the record of those documented e-mails, 

phone calls and letters that we accumulate over time as we try to 

find the rightful registered owners of those copyrights. 

Even with that paper trail, I would have had to indemnify the 

commercial outlet or distributor that I was working for after the 

work was aired. And then in order to protect myself, I have to get 

something called errors and omissions insurance. In today’s litigious environment, the insurers are very reluctant to insure me if 

I have a piece of work for which I can find, identify and have written permission from a registered copyright owner. 

In some outlets, even if I have proved that I have done due diligence, even if the errors and omissions insurer can be persuaded 

to take my word for it, the outlet itself will not air the piece with 

10

that piece of footage in it. So it doesn’t matter how much due diligence I do; in some cases, this piece could not air. 

Were the legislative branch to pass a cap on the amount of damages a found copyright owner could receive, this risk would be 

quantified for the insurance companies, because this is what the 

problem is: We are all afraid that a copyright owner will emerge 

and sue us all for millions. Were there a provision for me to have 

a safe harbor by taking that piece of footage out of my documentary, that would increase the insurance company’s confidence that 

an expensive settlement might be able to be avoided. If the distributor could be spared the threat of injunctive relief, we would all 

breathe much easier. 

As it turned out in the case of the footage that I described and 

discovered, that footage on 125th Street in Harlem, I was able to 

find finally the original photographer of that footage. It took me 

the better part of 3 months, using the steps that I described earlier. I was able to take that long because I was working for PBS, 

but in the commercial arena no one gets that amount of time to do 

that kind of research. 

That would have been a shame because in the footage that I 

found, I found several shots of my father, a man whom I had never 

known as a child and whom I only met when I was 30 years of age. 

In the shots in 1954, he was holding me when I was barely 6 

months old. 

I was lucky, as I have not been on other occasions and as many 

others have not been in other situations, to be able to put together 

my own history using footage and archive house-declared orphans. 

Shot by shot, others bits and pieces of our history are being lost 

because of the fear by insurers and the fear of cable outlets that 

they will face a lawsuit if so-called orphan works cannot be identified and the registered owners can’t be found. It means that bits 

and pieces of our history are being lost. Future generations will 

never be able to know why they didn’t see that history. They will 

just know that they never saw it and no one will ever know why. 

I ask the Committee to consider giving every filmmaker more of 

a chance to tell the full story of all of our histories and have a 

chance to bring that history forward by considering deeply the 

value of the work that the Copyright Office has done in this regard. 

Thank you. 

[The prepared statement of Ms. Cross appears as a submission 

for the record.] 

Chairman HATCH. Thank you, Ms. Cross. 

Mr. Holland. 

STATEMENT OF BRAD HOLLAND, FOUNDING BOARD MEMBER, 

ILLUSTRATORS’ PARTNERSHIP OF AMERICA, MARSHFIELD, 

MASSACHUSETTS 

Mr. HOLLAND. Chairman Hatch and Ranking Member Leahy, 

last year the Illustrators’ Partnership filed a submission with the 

orphan works study which was endorsed by 42 national and international arts organizations representing a broad spectrum of popular artists; fine artists; medical, scientific and architectural illustrators; cartoonists; and educators. On behalf of these artists, I appreciate the opportunity to address you. 

11

Our chief objection to the orphan works amendment is that it is 

not an orphan works amendment. An orphan works amendment 

would have applied to old work whose authors have abandoned 

their copyrights. This proposal would legalize the infringement of 

any work of art, past, present and future, regardless of age, country or origin, published or unpublished, wherever the rights-holder 

cannot be identified or located. 

It would permit a user to appropriate the private property of 

rights-holders based on the user’s own definition of a good-faith, 

reasonably diligent search. It would reimpose formalities by forcing 

rights-holders to rely on registries, meta data and notice as a condition of protecting their copyrights. It would be retroactive, affecting art done over the last 30 years when artists were told that 

their work would have the basic protections of copyright law, 

whether it was marked or not. 

It would affect illustrations and photographs disproportionately 

because trade practice requires that images routinely be published 

without identifying information or because artists’ signatures or 

marks may be illegible, or because information can be removed by 

others. It would remove any meaningful remedies for infringement, 

which are the only means that rights-holders now have of enforcing 

copyright. It would place an impossible burden of diligence on 

rights-holders because they would never have the resources to police infringement, which can occur anytime, anywhere in the world. 

It would interfere with the rights of artists to exploit their work 

in commercial markets, which would violate the three-step test of 

TRIPs. And it would harm foreign artists by making vast bodies of 

their work royalty-free in the United States. 

For these reasons and for many others, and with all due respect, 

we do not believe the statutory language proposed by the Copyright 

Office is a solution to the real orphan works problem. Instead, it 

is a blueprint for a radically different copyright law. 

The inability to distinguish between abandoned copyrights and 

those whose owners are simply hard to locate is the catch–22 of the 

orphan works project. To put it simply, if a picture is unmarked, 

it is impossible to source or date it. Therefore, this amendment 

would orphan millions of valuable copyrights that cannot otherwise 

be distinguished from true orphaned works, and that would open 

the door to cultural theft on an unprecedented scale. 

In their submission to the orphan works study, Professors Jane 

Ginsburg and Paul Goldstein warned that orphan works legislation 

should precisely define the category of orphan works. The broader 

the category, they wrote, or the lower the bar to making requisite 

showing of due diligence, the greater the risk of inconsistency with 

our international obligations, which in turn reflect longstanding 

practices that have passed the test of time. 

Many potential users of orphan works have asserted that these 

works have little or no commercial value. While this may be true 

of real orphaned work, it is not true of the numberless managed 

copyrights that would be caught in an orphan works net. Non-profits organizations which assert that only work of little or no commercial value will be affected have not documented their assertions, and other users who wish to exploit work royalty-free have 

12

every incentive to minimize the value of the work that they would 

profit from selling access to. 

We believe the orphan works problem can be and should be 

solved with carefully crafted, specific, limited exemptions. An exemption could be tailored to solve family photo restoration and reproduction issues without otherwise gutting artists’ and photographers’ copyrights. Usage for genealogy research is probably already covered by fair use, but it could rate an exemption if necessary. 

Limited exemptions could be designed for documentary 

filmmakers. Libraries and archives already have generous exemptions for their missions, and if their missions are changing, they 

should abide by commercial usage of copyright instead of forcing 

authors to subsidize their for-profit ventures. 

Therefore, we would respectfully urge this Committee to consider 

the negative effects that this proposed statutory language would 

have on free-market transactions, and we ask you to conduct further hearings to resolve this specific problem of providing public access to true orphaned works. 

Thank you. 

[The prepared statement of Mr. Holland appears as a submission 

for the record.] 

Chairman HATCH. Thank you. 

Ms. Pallante. 

STATEMENT OF MARIA PALLANTE, ASSOCIATE GENERAL 

COUNSEL AND DIRECTOR OF LICENSING, THE SOLOMON R. 

GUGGENHEIM FOUNDATION (GUGGENHEIM MUSEUM), NEW 

YORK, NEW YORK 

Ms. PALLANTE. Chairman Hatch, Senator Leahy, thank you for 

the invitation to testify on behalf of American museums. In fact, 

my comments today reflect the views of 18 non-profit organizations 

in the cultural and educational sectors, which in turn represent a 

combined 145,000 museums, libraries, universities and archives, 

more than 135,000 independent historians, educators and scholars, 

all of whom want to make productive use of orphan materials in 

conjunction with their missions. 

We applaud the Copyright Office for its tremendous contribution 

to the copyright community in producing the report on orphan 

works. Although the report addresses many complex issues, including the need to include unpublished works, the need to provide a 

flexible work standard, the need to distinguish between commercial 

and non-commercial uses, we believe the Office got things fundamentally right. On the few points where we have concerns, we 

are extremely optimistic that clarifications can be made and that 

consensus can be reached with the other parties. 

The importance of orphan works relief to our communities cannot 

be understated. We have in our possession millions of orphans, 

from personal photographs of ocean voyages, to documentation of 

historical artifacts, to letters of Holocaust victims. The Copyright 

Office approach, with certain clarifications and modifications, has 

the power to directly affect the intellectual, historical and cultural 

life of all Americans. 

13

It will improve the work of individual artists, writers, 

filmmakers, as well as scholars, historians, librarians, archivists 

and curators, who everyday struggle to balance the rights of missing or unidentifiable copyright-holders with the mission of making 

these letters, manuscripts, photographs and other culturally significant material available to the public. 

I would like to turn now to some recommendations that we believe are necessary to make the legislation truly responsive not 

only to the museum community and other users, but to the public. 

I will make just three points. 

First, we believe the statutory language should define reasonable 

compensation. Reasonable compensation is a flexible formula that 

has not received extensive interpretation in case law, and to be 

honest it was not the first choice of museums. We wanted a safe 

harbor, a clear exemption; we wanted certainty. Nor was it the 

choice of many other users in the educational sector. Most wanted 

a clear cap on damages, a cap as to potential liability, certainty. 

This said, we are willing to support the concept if it is defined 

in the statute and if clear examples are provided in the legislative 

history, including illustrations where the user is a non-profit institution or an independent scholar, and reasonable compensation is 

typically zero compensation. Indeed, it is not uncommon for the decision to use a particular work to turn on whether it is available 

for free. 

Second, in its recommended statutory language, the Copyright 

Office has proposed a safe harbor from all monetary relief in certain limited instances where the use is made without any purpose 

of direct or indirect commercial advantage. This phrase is well-intended by the Office and it has been well received by us, but we 

think it requires clarification. 

For example, organizing and publishing books is a core educational function of museums. It is no different than our function 

of organizing and presenting exhibitions. Publication of books furthers our central non-profit mission of education. In many cases, it 

is the only practical means by which we make our collections accessible to the public. The fact that we sell books does not make the 

sale for purposes of commercial advantage. We sell them for the 

same reason we charge admission fees, to defray the cost of operation and production. Our publications departments are cost recovery operations. 

In truth, we do not even break even on our books. We do not recovered the many fixed costs—the salaries of our curatorial and 

editorial staffs, the cost of the exhibitions, the cost of the collections 

on which the exhibitions are based. We need confirmation that the 

creation and sale of mission-related publications are uses that are 

undertaken without any purpose of direct or indirect commercial 

advantage. On a related point, though independent scholars may 

sometimes earn royalties, this does not make scholarship a commercial activity. 

Third, because orphan works will often, perhaps most often be 

incorporated into other works of authorship, we would like to see 

language that more clearly defines the circumstances under which 

a user may avoid an injunction in cases of books, films, artworks 

and websites. A user may well decide to incorporate the orphan 

14

work based on having determined that there was no rights-holder. 

If the copyright owner later emerges and sues for infringement, an 

injunction would be disastrous for the user and the public. In our 

view, the right approach here is to allow the use to continue, but 

to require the user to pay the owner reasonable compensation. 

In closing, we do recognize that orphan works is a complicated 

undertaking, but in our view an orphan works amendment has one 

ultimate goal. It should help to make cultural heritage more broadly available to the public. It must give users the confidence necessary to take works out of obscurity and to expend the resources 

to make them newly available. We believe this legislation is achievable, and on behalf of all American museums and our colleagues 

in the cultural and educational sector, we thank you for your leadership in making it happen. 

[The prepared statement of Ms. Pallante appears as a submission 

for the record.] 

Chairman HATCH. Well, thank you so much. 

Mr. Rubin, we are pleased to have you here. 

STATEMENT OF THOMAS C. RUBIN, ASSOCIATE GENERAL 

COUNSEL, MICROSOFT CORPORATION, REDMOND, WASHINGTON 

Mr. RUBIN. Chairman Hatch, Senator Leahy, my name is Tom 

Rubin and I am Associate General Counsel for Copyrights, Trademarks and Trade Secrets at Microsoft Corporation. Thank you for 

providing Microsoft the opportunity to testify regarding possible 

legislative solutions to the issue of orphan works. We commend the 

Subcommittee for convening this hearing and thank Chairman 

Hatch and Senator Leahy for requesting the Copyright Office’s detailed study and analysis. 

Microsoft is the leading provider of software services and solutions used by hundreds of millions of consumers and businesses 

worldwide. We are a creator of valuable copyrighted works such as 

Windows and Office, as well as a user of copyrighted works created 

by others. For example, our interactive encyclopedia Encarta and 

our online service MSN contain both original and third-party content. Although we clear rights to any third-party content that appears in our products, we occasionally have run into difficulties locating the owners of works we wish to include. 

Microsoft’s interests in the orphan works issue thus coincide with 

those of both authors and users. We therefore support a balanced 

solution to the orphan works problem, one that respects the exclusive rights of creators while advancing the public’s interest in obtaining broad access to works. 

While there are several possible approaches to the policy issues 

raised by orphan works, the approach set out in the Copyright Office report is a promising start. As an initial matter, we believe 

that addressing the orphan works problem through a limitation on 

remedies offers a reasonable approach, one reflected elsewhere in 

the Copyright Act for promoting the dissemination of works while 

safeguarding the rights of copyright owners. We believe this approach is far preferable to one such as a registration system or 

similar regime that would impose formalities or other burdens on 

authors and the Copyright Office alike. 

15

It is also preferable to a compulsory or other government-administered licensing or royalty scheme which could become mired in 

bureaucratic overhead while denying authors fair compensation for 

their works. A compulsory license is particularly inappropriate for 

the orphan works problem because if the work is a true orphan, 

there would be no one to receive the compulsory license fee. And 

if, by contrast, the work proves not to be an orphan, compensation 

to the copyright owner should match prevailing market-based royalty rates for the work. 

We also believe that a use-based registration system in which 

users would enjoy limited liability simply by filing a notice with the 

Copyright Office before using a work would be unfair to authors, 

inefficient and difficult to implement. 

With respect to the specifics of the Copyright Office’s proposed 

legislation, we support the use of a good-faith reasonableness 

standard for evaluating whether a user has conducted a sufficiently 

diligent search to locate a work’s owner. Given authors’ exclusive 

rights to decide whether and how to make their works available to 

the public, it is vital that the proposed limitations on remedies be 

available only to users who have undertaken objectively reasonable 

and truly good-faith efforts to locate the work’s owner. Merely perfunctory searches should never qualify for the limitation on remedies. 

The nature of what constitutes a sufficiently diligent search is 

likely to vary considerably, depending upon a variety of factors. 

Given the fact-specific nature of the inquiry, we appreciate the difficulty of establishing specific statutory criteria for what constitutes a good-faith, reasonably diligent search. At the same time, 

we consider it essential that this standard not be interpreted in a 

manner that would weaken the ability of copyright owners to protect their works against misappropriation. We therefore support 

the ongoing efforts of various stakeholders to explore what might 

constitute a reasonably diligent search in various contexts. 

In those cases where a copyright owner is entitled only to reasonable compensation for the use of her work, we support the notion 

that this amount should represent the amount the user would have 

paid to the owner had they engaged in negotiations before the infringing use commenced. Given its importance, clarifying this 

standard in the legislative text, in our view, would be useful. 

In closing, I would like to emphasize the beneficial role that technology, and in particular software, can play in helping address the 

orphan works problem. As the Copyright Office report observes, 

any system to deal with orphan works should seek primarily to 

make it more likely that a user can find the relevant owner in the 

first instance. Technologies already exist that make it easy for authors to embed rights management information into their digital 

works and for users to locate and read this information. 

As search technologies continue to improve—an area in which 

Microsoft is devoting substantial resources—the ability of users to 

locate copyright owners should likewise improve, thereby decreasing the number of cases in which a work is incorrectly considered 

an orphan. 

Thank you once again for inviting Microsoft to testify at today’s 

hearing. We commend the Subcommittee for giving its attention to 

16

the orphan works issue and we look forward to working with the 

Subcommittee as it shapes and advances legislation in this area. 

[The prepared statement of Mr. Rubin appears as a submission 

for the record.] 

Chairman HATCH. Thank you, Mr. Rubin. 

Mr. Prelinger. 

STATEMENT OF RICK PRELINGER, BOARD PRESIDENT, 

INTERNET ARCHIVE, SAN FRANCISCO, CALIFORNIA 

Mr. PRELINGER. Thank you, Mr. Chairman, for the privilege of 

addressing the Subcommittee today. I would like to begin by thanking you and the Ranking Member for your leadership in addressing 

the orphan works situation. The process that you have started has 

awakened broad public interest and we are very excited to see this 

problem being so actively and thoughtfully addressed. 

I come to you today wearing two hats. First, as Board President 

of the Internet Archive, I would like to say a few words about our 

activities, especially our project to digitize the contents of America’s 

great libraries and build an open digital library available to all. My 

second, and considerably smaller-size hat is as founder of Prelinger 

Archives, a small commercial film archive that specializes in historical footage of American life, culture and industry. I would like to 

talk about why clarifying the orphan works situation is especially 

critical for films. 

So, first, the Internet Archive. We are a non-profit library that 

has collected billions of works and served millions of users since 

1996. We collect books, music, moving images, Web pages and software programs. We work with the Library of Congress, the National Archives, the National Archives of the UK and many other 

institutions to find workable solutions to libraries’ and archives’ 

missions in the digital world. 

Last October, we announced the formation of the Open Content 

Alliance, in partnership with five major technology companies and 

over 50 research and public libraries holding over 150 million 

books. The alliance seeks to digitize the holdings of key libraries 

and build a great joint collection online. Our members have all 

agreed to make their holdings openly available to all users, subject, 

of course, to the limitations of copyright law. 

We believe that there are many hundreds of thousands, perhaps 

millions of orphan works which, if digitized and made available to 

all, would vastly add to our public storehouse of knowledge. We 

hope that we and our partners will be able to digitize and provide 

access to these books for non-commercial public purposes without 

fear of liability. Toward this end, we strongly support the Copyright Office’s suggestion regarding limitation on remedies for noncommercial use and we advocate a simple request and removal procedure for libraries and archives that would respect the rights of 

copyright owners who come forward. 

Let me switch hats and say a quick word about the Prelinger Archives. Most of our collection actually came here to the Library of 

Congress in 2002, but we are still collecting historical film, especially industrial advertising films and home movies. These are 

vivid documents of everyday life showing our country and its peoVerDate 0ct 09 2002 11:43 Aug 28, 2006 Jkt 028336 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28336.TXT SJUD4 PsN: CMORC
17

ple as they actually were, quite unlike Hollywood films or TV 

shows. 

Our footage is in very high demand and we have made a business out of licensing stock footage. Most of our films are, in fact, 

orphan works because most small film producers are no longer in 

business. Contemporary audiences are fascinated by historical 

films. I recall the thrill of an audience in Britton, South Dakota, 

when I showed them Depression-era home movies from their own 

town. This coming August, archivists and members of the public 

will gather in at least 24 States to celebrate Home Movie Day, 

watch family films and select historically valuable items for preservation. We ourselves have put 2,000 of our own films online for 

free, and some 5 million have been downloaded. 

Film is a peculiar creature in that it is quite fragile. It often decomposes more quickly than copyrights do. We therefore face a critical dilemma when it comes to preserving films. Non-profit archives 

like Northeast Historic Film and organizations like the National 

Film Preservation Foundation—by the way, I would like to thank 

you for your work in reauthorizing the National Film Preservation 

Board, the foundation’s parent—need assurance that they can intervene to rescue deteriorating films without fear of liability. Small 

businesses like ours whose budgets are at non-profit levels also 

need to know that they can recover the costs of preservation 

through commercial licensing. 

I am a member of the baby-boom generation. Much of my generation’s history has passed into the public domain, but because of the 

peculiarities of copyright law, many of my younger friends lack the 

freedom to freely quote or reproduce key works from their own era. 

Easing access to orphan works would go a long way toward addressing this generational inequity. 

I thank the Subcommittee for its attention and I look forward to 

answering any questions. 

[The prepared statement of Mr. Prelinger appears as a submission for the record.] 

Chairman HATCH. Well, thank you. This has been very interesting to me. I have to say a lot of people think it is a seemingly 

small issue, but it a whole raft of issues that are very complex and 

very interesting. 

Conceptually, there appears to be at least three different proposals to address the orphan works problem, and I would just like 

to get the panel’s view—and we will start with you, Mr. Sigall, 

from left to right—on the relative merits of each of these three approaches. 

First, there is the Copyright Office proposal which simply limits 

the remedies available if an alleged infringer can demonstrate that 

he or she performed a good-faith, reasonably diligent search for the 

copyright owner prior to using the copyrighted work. Now, this is 

perhaps the simplest solution and it minimizes the ongoing involvement of the Copyright Office and other governmental entities in resolving disputes over orphan works. 

Second, some have suggested the creation of a new statutory license that would impose the duty on a potential licensee to perform 

a more specific type of search and pay a statutory royalty before 

using any orphan work. If an owner of a work that was used subseVerDate 0ct 09 2002 11:43 Aug 28, 2006 Jkt 028336 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28336.TXT SJUD4 PsN: CMORC
18

quently emerged, he or she could then make a claim against the 

royalty pool and receive payment for the use of the work. Obviously, this proposal would require more involvement by the Copyright Office in terms of administering the license and distributing 

royalty payments. 

Third, some have proposed instituting something similar to the 

renewal requirement that existed prior to our accession to the 

Berne Convention. Under this proposal, copyright holders would be 

required to comply with a formal review process that would be 

similar to registration in order to enjoy continued copyright protection near the end of the current copyright term. Now, as I understand it, to remain in compliance with our treaty obligations, we 

would have to limit such renewal formality just to U.S. copyright 

owners. 

I think both of us would be interested in hearing from each witness about the relative merits and potential problems with each of 

these options, and we will start with you, Mr. Sigall. 

Mr. SIGALL. Well, I will address the second and third options. We 

are fond of the Copyright Office proposal, as you might expect. 

With respect to statutory license or a system where a user would 

have to both do a diligence search and pay into a fund that could 

be distributed to resurfacing copyright owners, we addressed that 

a little bit in our report. The main, I think, objection to that proposal where it is flawed in this context is that if most of us agree 

that most reasonably diligent searches will find owners, and those 

that don’t truly are orphan work situations, you are setting up a 

system where people are paying into a fund where there is no 

owner to come back and collect the funds. 

So you would have to set up a bureaucracy, as you mentioned, 

in the Copyright Office to collect the money. But in almost every 

case, maybe upwards of 95 to 99 percent of the time, that money 

doesn’t get distributed to a copyright owner. It just sits there. It 

either goes back to the user in an inefficient way or gets distributed somewhere else. 

This is not like the situation in other circumstances where a statutory license has been implemented where you know where copyright owners are and where the moneys can be distributed more efficiently. So we don’t think that is the most efficient or effective 

way to address the problem with respect to orphan works because 

we think in most cases there will be no owner who resurfaces. So 

let’s not set up a system to address a problem that won’t actually 

arise in practice for the most part. 

With respect to questions of a renewal requirement or an additional formality that might be imposed on copyright owners to 

maintain their copyright, in essence, as you mentioned, that raises 

the real potential of violation with our international obligations 

and the general prohibition against such formalities. 

As a practical matter, we have experience with that kind of system under our old 1909 copyright law and the experience from that 

time is that those burdens, the burden of renewal and the burden 

of filing maintenance of your copyright, fall most heavily on individual copyright owners, like photographers and illustrators that 

are here today. And they end up being more a trap for the unwary 

19

than they do actually help solve the problem of getting copyright 

owners and users together. 

The other thing I think that is the flaw in those types of systems 

is they offer what I would call the illusion of certainty. There is a 

feeling that if there is a piece of paper that people can go find in 

the Copyright Office or somewhere that you will know who the 

owner is and resolve a lot of the questions. You may in several 

cases, but what you end up having is what we had under the 1909 

Act. You end up having litigation over arcane definitions about 

when something was published or what exactly the piece of paper 

in the Copyright Office covers, instead of having more appropriate 

questions of what the person did to find the copyright owner and 

how much the copyright owner made themselves available. 

So we think both in legal terms and in practical terms, a registration and renewal requirement really doesn’t help solve the 

problem that we are trying to solve in the orphan works situation. 

Chairman HATCH. Mr. Perlman, my time is up, so if you could 

answer in short verse, I would appreciate it. 

Mr. PERLMAN. Like Jule, I won’t comment on the orphan works 

proposal from the Copyright Office, but for the reason that I dislike 

it as much as he likes it. 

The statutory license or something similar is already working in 

the music world. I think that that seems to be at least a good starting point for an approach. Jule doesn’t like it because it is inefficient. I think inefficiency is better than confiscation. 

The renewal requirement, I believe, would not really help users 

of images because whether it is registered or renewed, the user 

simply can’t find the information the way the Copyright Office’s 

records are currently searchable. 

Chairman HATCH. Ms. Cross. 

Ms. CROSS. I think we would tend to side with Mr. Sigall on the 

Copyright Office’s proposal. PBS actually does use a version of a 

statutory royalty. We call it an escrow account. It might be something that is worth looking at if you choose to explore that. 

I think where we stand generally is that we are in favor of some 

kind of cap on whatever amount would be charged should an orphan work registered owner emerge and stretching the take-down 

provisions to include we who make films. 

Chairman HATCH. Mr. Holland. 

Mr. HOLLAND. Well, briefly, the problem, I think, with a renewal 

requirement is it would create massive amounts of paperwork that 

would just—if you are photographer, you take hundreds of thousands of images that you have to start tracking and renewing. You 

are going to be swamped with paperwork. Artists and photographers would simply have to put on extra staff just to handle the 

renewals. 

I would agree with Vic that inefficiency is better than confiscation, and I would think that the problem with formalities is that 

the Copyright Office proposal already imposes formalities. It just 

doesn’t say so, but it does so by penalizing artists who don’t impose 

formalities on themselves. 

Chairman HATCH. Ms. Pallante. 

Ms. PALLANTE. We support the Copyright Office proposal because 

it is the only one, in our view, that addresses the need to give us 

20

some confidence to get things out of obscurity. It gives us a framework where we can look at millions of photographs and unpublished letters, and figure out how to invest in those and put them 

out in new formats available to the public in a way that is meaningful without the fear that at any point in the future somebody 

will come along and slam us with a lawsuit for an amount of 

money that we just can’t handle. 

So the practical respect of the other two proposals is that we just 

won’t use that material and that is what is happening now. The 

reason we like the Copyright Office proposal is because it is fresh 

and innovative and would get us thinking about how we can make 

that stuff available, especially given the Internet and digital technology. 

Chairman HATCH. Well, thank you. 

Mr. Rubin. 

Mr. RUBIN. We believe that the Copyright Office approach is an 

elegant approach to the competing concerns that are raised by the 

orphan works issue. The problem with the statutory license is that 

the best remedy is one that would approximate what the parties 

would have agreed to, given the work that is at issue. Coming up 

with a statutory fee will likely be either too little or too much, 

given whatever the work is. It will also create enormous overhead. 

And as Mr. Sigall said, in the vast majority of situations, particularly as time goes on and technology improves, there will be fewer 

true orphan works out there. So a whole structure will be set up 

with little benefit. 

As for new formalities, those, too, would lead to tremendous overhead. It would create an inappropriate disparity between U.S. and 

foreign works, and it doesn’t particularly or directly address the 

problem at issue. 

Chairman HATCH. Thank you. 

Mr. Prelinger. 

Mr. PRELINGER. We believe that the Copyright Office proposal is 

thoughtful and takes these competing interests into account. Archives have two primary missions—preservation and access—and 

in the digital world both of these functions are handled on a scale 

that we haven’t seen before. The Internet Archive, for example, has 

55 billion Web pages, and we think that the framework that is advanced by the Copyright Office comprehends this new direction and 

will allow digital archives to function fruitfully. 

Chairman HATCH. Thank you. 

Senator Leahy. 

Senator LEAHY. Thank you, Mr. Chairman. I am finding it interesting, obviously. The reason for this panel is there is not uniformity of opinion. 

Mr. Sigall, let me first go to you. As I said, I appreciate the report and all the work your office did and I think that work was 

very, very helpful. But you have said photographers have objected 

to the proposed legislation because of the high cost of litigation, but 

then you say that already exists today. Of course, it does, but what 

also already exists is the possibility that the infringer, especially if 

he has a unique photograph, might have to pay a lot of money to 

the photographer. The orphan bill takes that away, so then the inVerDate 0ct 09 2002 11:43 Aug 28, 2006 Jkt 028336 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28336.TXT SJUD4 PsN: CMORC
21

fringer becomes more emboldened and a lawyer is certainly much 

less apt to take it on a contingency basis. 

How about changing the bill to permit attorney’s fees and costs 

and statutory damages if you have a case where an infringer 

couldn’t show that he had reasonably sought to find the owner? 

Mr. SIGALL. Well, that solution is a potential avenue to explore 

to address the situations where the user is truly intransigent and 

truly does not want to negotiate with the photographer or other 

copyright owner who resurfaces over what the reasonable compensation might be. 

Senator LEAHY. It would also cover the case where they didn’t do 

a reasonably diligent search because they didn’t want to find the 

photographer, for example. 

Mr. SIGALL. The difficulty that that proposal would raise is that 

what we heard from many in the user community is it is the prospect of statutory damages and attorneys’ fees which is the major 

obstacle to them being able to use the work. So to the extent any 

proposed change to our proposal reintroduces that uncertainty, 

they might be concerned that no matter what they try to do, somebody down the road will say it wasn’t enough or it wasn’t an effort 

to find the owner. And then they are faced back with the same uncertainty that they have under the current system, which is always 

the possibility, even though it may be remote, of a statutory damages or attorneys’ fees award against them. 

And keep in mind that under the current system those remedies 

are only available if the photographer has, in fact, registered their 

work in advance of the infringement, or any copyright owner has 

registered their work in advance of the infringement. 

So to the extent there is any consideration of reintroducing some 

of those remedies back into an orphan works system, it would have 

to apply only in a situation where the photographer or illustrator 

has done that in advance of the infringement. It shouldn’t give 

them those remedies back. 

Senator LEAHY. Well, what about a situation like this: Somebody 

takes a photograph today and the person sees it and says you can’t 

use that? We had this happen recently on a book that is now currently on the bestseller list. I got one of the first copies that came 

out before they realized that. Then in the hundreds of thousands 

printed after that first run, they had to change the cover. That is 

easy. They said you can’t use it. It stopped, and I assume they negotiate for what has been used. 

But what if you have a case where, say, a singer sings a song 

and then it is used in a way they never expected, never could have 

anticipated, in a pornographic movie, for example? Now, they feel 

they really are damaged because if they get associated with that, 

it may well change where they can get concert fees, and so on. Or 

it is used in a way that would obviously cause great embarrassment to them because of their religion, their background, their 

family, or whatever. 

Reasonable compensation, as we might define it, is kind of cold 

comfort, isn’t it? Don’t you have to have some way to handle something like that? 

Mr. SIGALL. Well, under our proposal, the limitations on remedies don’t come into play if the owner can be found through a reaVerDate 0ct 09 2002 11:43 Aug 28, 2006 Jkt 028336 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28336.TXT SJUD4 PsN: CMORC
22

sonably diligent search. So if a songwriter, for example, has their 

song, if they are registered with ASCAP or BMI or the Harry Fox 

Agency or any of the various clearinghouses and other information 

sources, I think it would be the very, very rare case that that 

would be considered an orphan work. So they would be entitled to 

the full remedies that the Copyright Act affords them right now. 

Even under our proposal, the availability of injunctive relief is possible if the work is simply republished. 

Senator LEAHY. In an Internet age, injunctive relief isn’t a great 

deal of comfort, is it? 

Mr. SIGALL. Well, it is not, but again that is—— 

Senator LEAHY. I have taken several photographs here which I 

could have—I am not going to; I have my own collection, but they 

could be on dozens of websites before you are home for dinner tonight. 

Mr. SIGALL. That is true, and that is a problem that is generally 

applicable to copyright. 

Senator LEAHY. You look very good in the photographs. You don’t 

have to worry. 

Mr. SIGALL. That is true, and I think one of our suggestions that 

we made in the report and we have repeated is trying to develop 

ways for more efficient enforcement mechanisms that are less expensive and able to address infringement in a quicker way than 

with respect to Federal court litigation. 

Senator LEAHY. Well, Mr. Perlman suggested some kind of an alternative dispute resolution; I guess a small claims court or something like that. Am I stating your position correctly, Mr. Perlman, 

to handle orphan works issues? 

Mr. PERLMAN. I had several alternative proposals. Certainly, 

some sort of expedited handling of disputes relating to orphan 

works and copyrights generally would be a vast improvement over 

what we currently have. I think that having some sort of a licensing organization that would escrow funds would be preferable to 

that. Obviously, a lot of user communities don’t like that because 

that means that they would have to pay for things that they want 

to use for free. 

Senator LEAHY. I just realized the clock, Mr. Chairman. I am 

over my time. 

Chairman HATCH. You are fine. Go ahead. 

Senator LEAHY. You have two kinds of photographs here, as I see 

it: what I just took here, these digital photographs, which I have 

found as a result of which I will probably be able to contribute to 

my grandchildren’s college funds because I won’t have to pay so 

much for film that I would be spending otherwise. So those are 

easy to send over the Internet, but then you have got those of historical interest that you might find in an old family Bible or in a 

closet, attic or something like that. It would seem that those would 

be more apt to be orphaned, whereas with the more recent digital 

ones you could find the owner. 

Am I wrong, or should there be any difference in the treatment 

of them? 

Mr. PERLMAN. I think that at least as of the state-of-the-art 

today, you are probably not correct because some 90 percent of the 

23

images that appear on the Internet right now are unauthorized. 

They obviously have no way of tracking the author. 

One of the inherent problems, whether we are talking about 

print media or electronic media, is that at least for commercial photographs the publisher—and I use that term in the copyright 

sense—has total control over what information is available. Most 

of the time, they choose not to give any attribution to the copyright 

holder and creator. 

Worse, the user community as a whole has a vested interest in 

not disclosing that information because it then creates a pool of orphan works from which the other users can then take works without any compensation with, at most, the risk of having to pay a 

reasonable licensing fee. 

Senator LEAHY. In a digital age, what about the creative community setting up their own digital data banks? Wouldn’t that make 

it a lot easier to match up an appropriate use? 

Mr. PERLMAN. Absolutely, sir. 

Senator LEAHY. That would make it more difficult for somebody 

to say I did a reasonable search and I couldn’t find the person. 

Mr. PERLMAN. Absolutely. We are currently working with technology providers to use image recognition software to create data 

bases that would absolutely be usable. But as you pointed out at 

the beginning of your questions, that would work for the current 

pool and future pool of digital images. It does not begin to address 

the 50 or 70 or more years of photographs that are currently under 

copyright that are in print media. And the cost and difficulty of 

taking these millions, perhaps billions of images and turning them 

into digital files is astonishing. 

Senator LEAHY. Well, I am thinking, and it is sort of based on 

something Ms. Cross—and incidentally we are honored to have you 

here, with the work you do. 

Ms. CROSS. Thank you. 

Senator LEAHY. Putting these kinds of films together must be 

fascinating and it must be frustrating at the same time. What you 

said about seeing photographs related to your own life must have 

been almost overwhelming. I had somewhat of a similar feeling 

after my parents died, going through some of their old photographs 

and realizing who some of the people were. 

If we had a real—and maybe I should ask this of all of you—a 

real orphan works bill, do you envision companies coming up or 

groups coming up to do data banks and that if a filmmaker like 

you went to that data bank and said here is a picture I want to 

use that that would be considered a reasonable search? 

Ms. CROSS. No. 

Senator LEAHY. No? 

Ms. CROSS. No. 

Senator LEAHY. What would you want? 

Ms. CROSS. I have a fairly rigorous standard that I instruct all 

of my researchers to follow and it does not include one-stop shopping. I mean, even if there was a visual registry, I wouldn’t trust 

a visual registry because I don’t trust anything that is on the Internet. So I mean I would want to try to find whoever that picture 

was supposedly taken by, ask them did they, in fact, take it and 

send them a photocopy of it. 

24

If I can’t find that person through a data base, I am going to try 

to find out who were the other photographers that were present at 

the particular event. If I can’t figure that out, I will begin to start 

calling people that I know were present at the event and who did 

they know that was there. It is really a sleuthing—it is a detective 

expedition that we go on. 

The impact of an orphan works bill wouldn’t be that I would do 

less of that, because I am still going to want to make sure that I 

am not opening myself up to litigation. I am going to want to still 

document. It would just make it easier for me to use things that 

otherwise cable companies and even PBS now in some cases are 

saying, no, we don’t want to take the risk. We don’t know who this 

is. We don’t care that you can document making phone calls and 

sending e-mails two or three times a week for the better part of 6 

weeks or two months. We still don’t want to take the risk. 

As a result of that, there are things—and I am not talking about 

the photographers that work for Magnum or Getty Images. Those 

guys, they are documented, but the history of this country that is 

documented by mom and pop and home movies is not by and large 

documented within the archives of Magnum and Getty, and that is 

when we need help. 

Senator LEAHY. I just put together a photo show in Vermont, and 

all the photographs were mine except for two and I spent a lot of 

time and my staff spent a lot of time making sure that we had the 

permission of the two people who took those, even though there 

was no commercial involvement at all. It was at my alma mater 

and I wanted to use the two pictures because they were thematic 

to it, but I wasn’t going anywhere with them unless we had permission. 

Mr. Prelinger, you talked about digitizing orphan works for the 

public good and I am thinking about what Professor Cross just 

said. Would you feel comfortable using an orphan work under the 

proposed legislation? 

Mr. PRELINGER. In many cases, if we are talking about digitizing 

books or published moving images, it is a little bit easier because 

there are a number of tools that we can use either to locate an author or copyright holder or rule out that such an entity really exists. 

I think where it gets more complicated and what a lot of this discussion has been are unpublished works or works that are not attributed upon publication, such as an anonymous illustration. I 

would like to suggest that the attribution requirement that the 

Copyright Office is suggesting in its proposal goes a long way toward making sure that that work, if it is reused again as an orphan work, is identified and so there is the potential for the owner 

to come forward. 

Senator LEAHY. I think we have got a lot of work ahead of us, 

Mr. Chairman, on this issue, but I think it is an extremely important one. On the one hand, Professor Cross has said you want to 

work very hard, but then you want a film where these things may 

be integral to the film, just as a book or something else. 

I think of writers of a history book, how extraordinarily important that is. I mean, the photographs or a written letter or a facVerDate 0ct 09 2002 11:43 Aug 28, 2006 Jkt 028336 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28336.TXT SJUD4 PsN: CMORC
25

simile of a contemporaneous account—how much that adds to the 

interest or verisimilitude of the book itself. 

So on the one hand, I want to make sure that a writer, a documentary filmmaker or somebody else is not so gunshy they can’t 

use these things which will make the final product more realistic. 

On the other hand, I don’t want a situation where somebody can 

say, hey, I have got a great picture. Does anybody know where this 

comes from? You don’t? OK, I can use it. And somebody who has 

worked extremely hard to get that picture or discover that letter 

isn’t recompensed. 

Mr. Chairman, I think we have a lot of work ahead of us on this. 

Chairman HATCH. Well, I think we do. 

Senator LEAHY. Thank you. 

Chairman HATCH. It is certainly an interesting area. 

Let me just ask one last question of Mr. Rubin and Mr. 

Prelinger. I would be interested in hearing your thoughts about the 

relevance of a solution to the orphan works problem now that it 

has been raised to the world of the Internet. 

Let me ask you this: What type of impact would you foresee this 

having on the availability and diversity of online content? Let me 

go a little further than that. What types of things are not possible 

now that might emerge if orphan works were made more available? 

I would also be happy to hear from other witnesses about the impact of Internet distribution and its relevance to this debate after 

first hearing from you, Mr. Rubin, and then Mr. Prelinger. 

Mr. RUBIN. I think that, if enacted, there is likely to be greater 

uses on the Internet of a wider variety of historical images and 

works. One of the, of course, benefits, as well, of Internet use—

while it has a downside in terms of the ability for infringing works 

to be propagated on the Internet, one of the benefits is to the extent an orphan work or what was mistakenly identified as an orphan work appears on the Internet and it turns out that it is not 

an orphan work, the damages can easily be mitigated and the work 

can be taken down. That is not to say there shouldn’t be a remedy 

in that situation, but I believe that there would be greater accessibility to a wider diversity of works if the bill is enacted. 

Senator HATCH. Mr. Prelinger. 

Mr. PRELINGER. We think that if this legislation were enacted in 

substantially similar form to what we are seeing now that it would 

have a tremendous impact on the amount of cultural material that 

was widely available, and also on the reuse. Public authorship, 

whether it is scrapbooking or public television, really all along that 

spectrum we think would be tremendously helped. 

It does raise some questions. It would mean that libraries and 

archives that are collecting digitally would probably need to be able 

to make digital copies of orphan works for preservation purposes. 

That is a complex issue. Also, many of the documents that we collect at the Internet Archive are ephemeral and transient. They are 

Web pages that come and go very, very quickly. 

We have remedies, you know, the notice and take-down right 

now that is supplied by DMCA which is a very nice paradigm that 

we hope will be followed. In addition, there are technical means by 

which somebody can say don’t collect my Web page. They can put 

a robot exclusion into effect, and that has been working very, very 

26

well. For example, we don’t collect the New York Times because 

the New York Times has an automatic exclusion there. So we can’t 

save those pages. So to some extent this has been anticipated. We 

don’t think the problems are insurmountable and we think the opportunities are great. 

Chairman HATCH. Thank you. 

Does anybody else care to comment? 

Ms. PALLANTE. I would like to comment on that. I think for the 

museum and archive world, the impact would be tremendous. I 

couldn’t agree more. I think if the Copyright Office proposal were 

to pass with just some minor modifications along the lines that we 

have suggested in our written statement, you will see in a very 

short time incredibly interesting and historically important and 

culturally significant materials put out in new formats—websites, 

books, scholarly journals. It would be tremendous. 

Mr. HOLLAND. Could I comment? If something goes on the Internet, Senator Leahy said a few minutes ago that injunctive relief is 

cold comfort if something is put on the Internet. Once something 

is put on the Internet, it has been laundered throughout the world. 

I know of a painting of mine that is being infringed in Iran at this 

moment and there is not very much I can do about that. 

If the Copyright Office proposal goes through—it is not this isn’t 

happening already. Right now, it is called piracy. If the Copyright 

Office proposal is accepted, it is no longer piracy. It is a form of 

using orphan works. My picture in Iran right now is an orphan picture. Somebody is using it on their website. It is an orphan work 

because it is not attributed to me, and it creates a family tree of 

infringements because anybody who sees that unattributed is now 

able to pick that up and use it again. 

Chairman HATCH. Sure. 

Ms. CROSS. I think we should make a distinction between piracy 

and orphan works. I mean, that is not an orphan work. Somebody 

stole your work. 

Mr. HOLLAND. But once that person has taken it, it is 

unattributed. On his site, it is an orphan because there is no attribution. 

Ms. CROSS. But we know how to find the owner. 

Mr. HOLLAND. No, I don’t. 

Ms. CROSS. You are findable, you are findable. 

Mr. HOLLAND. He is in Iran. 

Ms. CROSS. No. I am saying the person—I don’t mean to start a 

direct conversation. 

Mr. HOLLAND. I apologize. 

Ms. CROSS. There is a distinction between stealing somebody’s 

work and being able to find, if someone tried to find the person, 

and an actual orphan work. I think this would give great confidence to a lot of insurers and to a lot of commercial outlets now 

which refuse to allow a lot of materials to be used because we just 

don’t know what they are. 

Mr. PERLMAN. To give an example of the potential inequity of 

this proposal, there are already companies and individuals who 

have registered domain names using variations of the term orphan 

works with the plan of creating data bases of images that they 

could then turn around, and since they don’t own the copyright, liVerDate 0ct 09 2002 11:43 Aug 28, 2006 Jkt 028336 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28336.TXT SJUD4 PsN: CMORC
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cense them, but instead allow people for a fee to come in and access 

the data base and use the images, thereby converting orphan works 

into a commercial windfall at the expense of the illustrators and 

photographers. 

Chairman HATCH. Well, under this proposal, though, you have a 

remedy anyway. 

Go ahead, Mr. Sigall. 

Mr. SIGALL. Let me also say none of this kicks in until the person 

does a reasonably diligent effort to find the owner and if the person 

in Iran or anywhere doesn’t make any effort to find Mr. Holland, 

this doesn’t apply. And to the extent that there are companies that 

might be planning to make a business out of this, to the extent 

they do a reasonably diligent search they still have to pay reasonable compensation to the owners. And at that point, the owners are 

surfacing. They can make themselves known to other users so that 

those users can’t claim benefit of the orphan works proposal as 

well. 

Chairman HATCH. Let me make a suggestion to you, Mr. Sigall, 

and other people there at the Copyright Office. Why don’t you prepare what you consider to be a list of things that must be undertaken before it could constitute due diligence so people would know 

what they really should be doing? 

Now, that is hard to do, and it is hard to do right, I understand, 

but at least it would be wonderful if we had some sort of a list of 

suggestions as to what would constitute due diligence in the eyes 

of the Copyright Office, and therefore maybe in the eyes of everybody. But if you would do that, I think that would be helpful. 

Mr. SIGALL. We would be happy to undertake that, but the problem is we would like to hear from people who do searches, like Ms. 

Cross or other people who use these works. 

Chairman HATCH. Well, sure, you would want to consult with 

Ms. Cross and others. 

Mr. SIGALL. Those folks have the expertise. Depending on the 

sector in which they are working, they know where the resources 

are and how to do things like that. 

Chairman HATCH. It seems to me you could be helpful to us here 

if we could come up with what would be at least minimal requisites 

for due diligence in looking for these things. Now, I know that 

there are an awful lot of products here, an awful lot of different 

types of venues here, but let’s see if we can come up with something that might be of some assistance to us. 

It is apparent, Professor Cross, that you do a lot of things, from 

your testimony, that you may not have to do. 

Ms. CROSS. Not if I want insurance. 

Chairman HATCH. In the interests of trying to be fair to copyright owners, you have done more than just say, well, I looked 

through the Internet and I couldn’t find anything. And we might 

be interested in what you think constitutes a due diligence search. 

I think I have some ideas of what I think would constitute that, 

and I think there are extremes one way or the other that we would 

like to avoid, but if we go to legislation like this, have some sort 

of a basis whereby people feel confident that there has been at 

least some effort made to discover the copyright owners. 

28

We would appreciate any other help you can give us. We will 

keep this record open. We don’t have any desire to stick anybody 

with legislation that might not be as effective as it should be. We 

would like to do the best job we can here, and I in particular am 

extremely interested in history and in the documentation that we 

have from history. 

Through museums like your own, we benefit tremendously from 

these types of materials if they can be disseminated widely, and we 

lose if we can’t find some way of disseminating it. So we would be 

very interested. We can see that there is a lot of work to be done 

here and, like I say, we don’t want to hurt anybody, but we would 

like to get this where it works to the best of our ability. 

We have listened to you, Mr. Holland, and you, Mr. Perlman, in 

particular, about your real concerns. But I have listened to all of 

you and we would appreciate any further help you can give us. We 

will keep the record open so you can write to us. 

This has been a very helpful hearing and I want to thank each 

of you for being here and participating. Although we may not in 

the end be able to accommodate all of the views and suggestions 

that have been made here today, please be assured that Senator 

Leahy and I will carefully consider them before moving forward 

with any orphan works bill, and the rest of the Committee as well. 

We welcome your ongoing participation as we move through the 

legislative process. 

Now, we are going to hold this hearing record open for an additional 7 days, which is, we think, a pretty good time. If you need 

more time, please let us know because we will continue to work on 

this and we would love to have your expert advice. 

With that, we want to thank you all for being here and the hearing stands adjourned. Thanks so much. 

[Whereupon, at 3:33 p.m., the Subcommittee was adjourned.] 

[Submissions for the record follow.]

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