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PROMOTING THE USE OF ORPHAN WORKS: BALANCING THE INTERESTS OF COPYRIGHT OWNERS AND USERS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COURTS, THE INTERNET, 

AND INTELLECTUAL PROPERTY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

MARCH 13, 2008 

Serial No. 110–131 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY

HOWARD L. BERMAN, California, Chairman 

JOHN CONYERS, JR., Michigan 

RICK BOUCHER, Virginia 

ROBERT WEXLER, Florida 

MELVIN L. WATT, North Carolina 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BRAD SHERMAN, California 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ZOE LOFGREN, California 

BETTY SUTTON, Ohio 

HOWARD COBLE, North Carolina 

TOM FEENEY, Florida 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

SHANNA WINTERS, Chief Counsel 

BLAINE MERRITT, Minority Counsel 

(III) 

C O N T E N T S 

MARCH 13, 2008 

Page 

OPENING STATEMENTS 

The Honorable Howard L. Berman, a Representative in Congress from the 

State of California, and Chairman, Subcommittee on Courts, the Internet, 

and Intellectual Property .................................................................................... 1 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Ranking Member, Subcommittee on Courts, the 

Internet, and Intellectual Property .................................................................... 3 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, Ranking Member, Committee on the Judiciary, and Member, 

Subcommittee on Courts, the Internet, and Intellectual Property .................. 10 

WITNESSES 

Ms. Marybeth Peters, Register of Copyrights, U.S. Copyright Office, Washington, DC 

Oral Testimony ..................................................................................................... 16 

Prepared Statement ............................................................................................. 18 

Mr. Allan Adler, Vice President of Legal and Governmental Affairs, Association of American Publishers, Inc., Washington, DC 

Oral Testimony ..................................................................................................... 30 

Prepared Statement ............................................................................................. 32 

Ms. Corinne P. Kevorkian, President and General Manager, Schumacher, 

A Division of F. Schumacher & Company, New York, NY 

Oral Testimony ..................................................................................................... 43 

Prepared Statement ............................................................................................. 45 

Ms. Karen C. Coe, Associate Legal Counsel, United States Holocaust Memorial Museum, Washington, DC 

Oral Testimony ..................................................................................................... 62 

Prepared Statement ............................................................................................. 64 

Mr. Victor S. Perlman, General Counsel and Managing Director, American 

Society of Media Photographers, Inc., Philadelphia, PA 

Oral Testimony ..................................................................................................... 68 

Prepared Statement ............................................................................................. 71 

Ms. Maya Gura, Director of Marketing and Sales, PicScout, San Francisco, 

ca 

Oral Testimony ..................................................................................................... 76 

Prepared Statement ............................................................................................. 78 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Howard Coble, a Representative in 

Congress from the State of North Carolina, and Ranking Member, Subcommittee on Courts, the Internet, and Intellectual Property ......................... 5 

Prepared Statement of the Honorable Lamar Smith, a Representative in 

Congress from the State of Texas, Ranking Member, Committee on the 

Judiciary, and Member, Subcommittee on Courts, the Internet, and Intellectual Property .................................................................................................... 11 

Page

IV 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 93 

(1) 

PROMOTING THE USE OF ORPHAN WORKS: 

BALANCING THE INTERESTS OF COPYRIGHT OWNERS AND USERS 

THURSDAY, MARCH 13, 2008 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COURTS, THE INTERNET, 

AND INTELLECTUAL PROPERTY, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:05 a.m., in 

room 2141, Rayburn House Office Building, the Honorable Howard 

Berman (Chairman of the Subcommittee) presiding. 

Present: Representatives Berman, Jackson Lee, Johnson, and 

Lofgren. 

Staff present: Shanna Winters, Subcommittee Chief Counsel; 

Eric Garduno, Majority Counsel; Christal Sheppard, Majority 

Counsel; and Rosalind Jackson, Majority Professional Staff Member. 

Mr. BERMAN. This hearing of the Subcommittee on Courts, the 

Internet, and Intellectual Property will come to order. 

I would like to begin by welcoming everyone to this hearing on 

promoting the use of Orphan Works, balancing the interests of 

copyright owners and users. 

A strong copyright law encourages the creation of original works 

of authorship and dissemination of these works to the public. But 

if the copyright holder can’t be found, valuable works, not only in 

the economic sense but historically and culturally as well, can’t be 

exploited without a user being exposed to great legal jeopardy. 

These works, then, are at significant risk of disappearing from 

the public consciousness before they can enter the public domain. 

I think we should correct a misnomer. The works we are talking 

about are not orphans. In fact, the specific scenario we struggle 

with is how to address what happens when the parent reappears. 

The more accurate description of the situation is probably an 

unlocatable copyright owner. 

This characterization better describes the Orphan Works construct, which is to correct the market failure when a potential user 

can’t find the copyright owner. For the sake of ease, we will keep 

talking about it like they are orphans. 

The second thing I would like to note is that the Orphan Works 

problem we are here to discuss is, in some part, of our own making. 

Copyright term extension coupled with our international obligation 

2 

to do away with formalities increased the likelihood that copyright 

owners would go missing. 

We made registration with the Copyright Office optional, and we 

rescinded the condition that all published works carry a copyright 

notice leading to a diminished public record of ownership information. 

Over the course of the last several years, there have been numerous attempts to address the challenges presented by Orphan 

Works. After receiving letters from the, then, Judiciary Subcommittee Chair and Ranking Members in both the House and the 

Senate about this issue, the Copyright Office undertook a comprehensive study in 2005 of the Orphan Works problem. 

We would like to commend Marybeth Peters, the register of copyrights, for the excellent report that office produced. 

After receiving hundreds of comments, the Copyright Office proposed a great foundation for approaching this issue, allowing for 

uses of Orphan Works while still protecting the copyright owner. 

In the most basic terms, the proposal maintained that it would 

still constitute an infringement to use a work determined to be orphan, but the full panoply of damages available to the reemerging 

copyright owner would be limited. 

Subject to a user completing a reasonably diligent search, if a 

copyright owner came forward after the use of the work, he would 

be limited to reasonable compensation and could not claim attorney’s fees or statutory damages. 

Furthermore, in some circumstances, the copyright owner may 

not be able to obtain an injunction if a significant amount of the 

user’s original expression was included in the infringing derivative 

work. 

Last Congress then-Chairman Lamar Smith convened a series of 

negotiations with the parties and introduced an Orphan Works 

Bill. Some changes were made to the original Copyright Office proposal, and that bill provided a good point for us to continue the discussion of this issue. 

Since that time, additional issues have been raised, new solutions or proposals have been presented, and some of the old questions still remain. 

For example, what are the appropriate parameters for a safe harbor? How much of the infringer’s own expression should be required to prevent an injunction? Are additional steps necessary to 

discourage bad actors such as a heightened pleading requirement 

or filing a copy of the search before use? Can more definition or 

guidance be given to what constitutes a reasonable search? 

I look forward to hearing the perspective of our witnesses on 

some of these issues. 

A couple of additional points. While there is a tendency to believe 

that I am—never mind. [Laughter.] 

There is a tendency to believe I am a lot of things—— 

While there is a tendency to believe that I am anti-technology, 

I actually think that technology can provide part of the solution to 

this problem. 

If the state of technology is advanced to allow a user to search 

images of copyrighted works in addition to ownership information, 

then the foundation is set for a system to enable most works to be 

3 

masked with an owner. In such a case, technology would help facilitate marketplace negotiations, benefiting copyright owners, 

users, and the public. 

In addition, regarding the problem of the ease of stripping identifying data of copyrighted works, technology may also provide a solution in this situation with the advancement and availability of 

digital fingerprinting, watermarking, or other technological measures. 

Finally, I continue to struggle with the impact of an Orphan 

Works construct layered on top of the current registration system, 

especially as it pertains to visual arts. 

If copyright owners go through the trouble of registering their 

works, but due to the nature of the database at the Copyright Office, their works can’t be found by a user, they are denied full remedies which, in part, motivated them to register in the first place. 

While I understand that a carve-out of registered works from Orphan Works treatment would not work, I fear that we may end up 

discouraging copyright owners of visual works from registering. 

I appreciate all of you coming today, and our witnesses, for the 

time and effort they took to come here. And I know we have a lot 

of work to do to get this ready. 

And I now would like to recognize our distinguished Ranking 

Member, Howard Coble, for his opening statement. 

Mr. COBLE. Thank you, Mr. Chairman. 

And I want the record to reflect that I do not believe our Chairman is anti-technology. 

Good to have you all with us. 

Mr. Chairman, thank you for agreeing to schedule this hearing 

on Orphan Works. It is a subject I am looking forward to today’s 

testimony and hope the Subcommittee will be in a position to address it in more detail in the weeks and months ahead. 

The Constitution provides that Congress has the right and the 

responsibility, as we all know, to ‘‘promote the progress of size and 

useful arts by securing for limited times to authorize and inventors 

the exclusive right to their respective writings and discoveries.’’ 

The founders made clear that the promotion and protection of 

what we now refer to as intellectual property is an essential responsibility of the legislative branch. 

Their choice of language also makes clear that the means of providing exclusive protection to creators was not to be exercised perpetually, nor is it an end to itself, but that this means is intended 

to be used in a manner that furthers the broader public interest. 

Many observers today, including several of our witnesses, are of 

the view that relatively recent changes to the law of copyright, 

when combined with other factors, have fostered situations that 

may tend to systematically discourage rather than encourage the 

advancement of broader societal interests. 

The copyright laws work well when users can identify the owner 

of the work, negotiate with owners to secure rights to use the work, 

and license to use the work before engaging in any new use. 

When users cannot identify the owner of the work they wish to 

use, the user is faced with a dilemma. The user can either use the 

work and run the risk of the owner later appearing and being 

awarded statutory damages in excessive amounts per infringement. 

4 

Or choose to not use the work and thereby eliminate any potential 

liability for copyright infringement. 

In instances where the intended use is educational or culturally 

significant, there are those who believe that there is a compelling 

and broader public interest that would best be served by encouraging further use of the work subject to the remedy of reasonable 

compensation to the owner if the owner later comes forward. 

After a lengthy study of the Orphan Works problems, the Copyright Office, in a 2006 report, recommended that Congress amend 

the law to provide for such a change. Shortly thereafter, as you 

previously mentioned, Mr. Chairman, Lamar Smith, the distinguished gentleman from Texas, introduced the Orphan Works Act 

of 2006 which built on the office’s recommendation and improved 

upon them by incorporating a number of new safeguards and protections designed to protect copyright owners from abuse. 

That legislation was favorably and unanimously reported to the 

full Judiciary Committee in May of 2006 but, unfortunately, was 

unable to advance to conclusion. 

Mr. Chairman, I am encouraged that the Subcommittee is once 

again taking up this important issue. I hope in the time remaining 

this year, we will be able to make real progress in resolving the 

remaining issues. 

To be successful, however, I think we will need to consider, 

among other questions, whether all types of copyrighted works 

should be included in the scope of any Orphan Works legislation 

and whether all or only certain classes of users should be able to 

benefit from any such regime. 

Today, I am not certain of the answer, but I look forward to 

hearing from our witnesses about their thoughts on the Orphan 

Works problem as well as the effects of proposed solutions. 

To the extent is that changes to the copyright law may have unintentionally and unnecessarily created impediments to the promotion of science and the useful arts, we have an obligation to correct this imbalance. 

With that, Mr. Chairman, I yield back my time. 

[The prepared statement of Mr. Coble follows:] 

5 

PREPARED STATEMENT OF THE HONORABLE HOWARD COBLE, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NORTH CAROLINA, AND RANKING MEMBER, SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY


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Mr. BERMAN. Well, thank you much, Mr. Coble. I appreciate your 

vote of confidence. 

The more accurate statement, really, is that technology is antime. [Laughter.] 

Other Members wish to make opening statements? 

Ranking Member of the full Committee, former Chairman of the 

Subcommittee, Mr. Smith. 

Mr. SMITH. Thank you, Mr. Chairman, and also Ranking Member 

Coble, for two things. For having this hearing today, and also for 

mentioning our past and joint efforts to try to advance Orphan 

Works legislation. 

I think I missed the Chairman’s reference to the last couple of 

years, but it was referred to by Mr. Coble. I appreciate that. 

As you all said, 2 years ago, this Subcommittee reported H.R. 

5439, the Orphan Works Act of 2006 to the full Committee. That 

bill was introduced in response to recommendations from the Register of Copyrights, Marybeth Peters, who, of course, is a witness 

here today. 

The register’s recommendations were published in the January 

2006 report on Orphan Works that followed a year-long study requested by me, then Ranking Member Berman, and two leading 

Members of the Senate Judiciary Committee. 

In addition to including the Register’s recommendations, that bill 

also contained a number of substantive proposals and reasonable 

accommodations requested by copyright owners and users. Notwithstanding the many hours of discussions and negotiations that 

preceded the introduction and Subcommittee referral of the 2006 

bill, late arising concerns caused us to temporarily put the bill 

aside in favor of fostering a broader discussion of the issues. 

Since that time, a number of stakeholders have stepped forward. 

Many have met repeatedly with representatives from the Copyright 

Office and Subcommittee staff. Others have conducted meetings 

among themselves for the purpose of identifying and proposing alternative solutions. 

In some cases, I understand there has been progress. In other 

cases, I am informed the Copyright Office has had to wait weeks 

or months before receiving promised language or suggestions. 

The Members of this Subcommittee have a history of openness 

and a demonstrated willingness to review any constructive proposal, but the good faith of the Members should not be used as a 

delaying tactic by those not interested in contributing to the resolution of matters before this Subcommittee. 

The enactment of Orphan Works legislation is in the public interest. The elimination of formal registration requirements and the increased term of copyright protection have fostered a growing recognition that Orphan Works legislation is required to restore balance to the law of copyright. 

Again, I want to thank the Chairman and the Ranking Member 

for all their behind-the-scenes efforts to try to move this legislation, 

which I hope will be successful this year. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Smith follows:] 

11 

PREPARED STATEMENT OF THE HONORABLE LAMAR SMITH, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF TEXAS, RANKING MEMBER, COMMITTEE ON THE JUDICIARY, AND MEMBER, SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY


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Mr. BERMAN. Thank you, Mr. Smith. 

Any other Members wish to make an opening statement? 

All right. Then we will get to our witnesses. 

I will introduce all of you, and then you can testify and try and 

keep it to 5 minutes and we will put our entire statements on the 

record. 

Marybeth Peters has served as the United States Register of 

Copyrights since 1994. 

Prior to 1994, she held the positions of policy planning advisor 

to the register, acting general counsel of the Copyright Office, and 

chief of both the examining and the information and reference divisions. 

Ms. Peters is a frequent speaker of copyright issues, is the author of The General Guide to the Copyright Act of 1976, and has 

served as a lecturer at a number of law schools. 

She received her undergraduate degree from Rhode Island College and her law degree from George Washington University. 

Allan Adler is Vice President of the Legal and Governmental Affairs for the Association of American Publishers, the national trade 

organization that represents the book and journal publishing industries, and deals with intellectual property, freedom of speech, 

new technology, and other industry-related issues. 

Prior to joining AAP, Mr. Adler practiced law at the firm of Cohn 

and Marks and was a legislative counsel to the American Civil Liberties Union. 

Mr. Adler earned his undergraduate degree from the State University in New York at Birmingham and his law degree from 

George Washington University. That is the requirement for being 

on the panel. [Laughter.] 

Corinne Kevorkian is President and General Manager of 

Schumacher, a division of F. Schumacher and Company. Ms. 

Kevorkian also served as senior vice president, general counsel, 

and secretary of the company. 

Prior to joining Schumacher, Ms. Kevorkian was an associate at 

Chadbourne and Park and at Whitman and Ransom. Ms. Kevorkian received an undergraduate degree from Overland College 

and a law degree from Boston College. 

Karen Coe is Associate Legal Counsel of the United States Holocaust Memorial Museum. There, she advises the museum management and program staff on all aspects of the museum’s administration and operation including copyright transfer and licensing. 

She also assists museum staff in acquiring intellectual property 

rights and responding to third-party requests for the same. Prior 

to joining the Holocaust Museum, she was an associate at Klimek, 

Kolodney and Casale. Ms. Coe holds an undergraduate degree from 

Smith College and a law degree from George Washington University. 

Victor Perlman is the General Counsel to the American Society 

of Media Photographers. He has been an attorney for over 35 years 

and has also served on the boards of directors of the Media Photographers Copyright Agency, the Copyright Clearance Center, and 

the Philadelphia Volunteer Lawyers for the Arts. 

He is the co-author of the book, ‘‘Licensing Photography.’’ 

16 

Mr. Perlman received his undergraduate degree from Franklin 

and Marshall College and his law degree from the University of 

Pennsylvania. 

Maya Gura is Director of Marketing and Sales for PicScout, a 

company that specializes in technology-enabled services for visual 

asset owners and users. 

Prior to joining PicScout, Maya held various marketing and managerial positions with a business-to-business focus including Business Development at Mantis, one of the leading Israeli design 

houses. She also managed CRM projects for the global advertising 

agency, McCann Erickson, and she earned her undergraduate and 

MBA degrees from Ben-Gurion University. 

As I mentioned, your statements will be part of the record. We 

will have the green light on which will switch to yellow and then 

red as your 5 minutes winds down and ends. 

Ms. Peters, would you lead the panel with your testimony? 

TESTIMONY OF MARYBETH PETERS, REGISTER OF 

COPYRIGHTS, U.S. COPYRIGHT OFFICE, WASHINGTON, DC 

Ms. PETERS. Thank you. Chairman Berman, Mr. Coble, Mr. 

Smith, Members of the Subcommittee, I am pleased to appear before you to support Orphan Works legislation. 

As Mr. Berman has said clearly, an orphan work is one whose 

copyright owner cannot be located. I used to call it unlocatable 

copyright owners, but it wasn’t sexy enough. 

Mr. BERMAN. Missing parents. 

Ms. PETERS. In any case, you have set out the history of Orphan 

Works legislation including the report of the Register and the recommendation and what happened in the last Congress. 

I am here to argue that the problem is still there and we need 

to do something about it. 

The pervasiveness of the problem is striking. So many users, private citizens, historians, artists, book publishers, film makers, museums, archives, librarians—including those at the Library of Congress, are frustrated because their intended uses do not fall within 

an existing exemption of the copyright law and they cannot locate 

copyright owners. 

Some uses are important on a personal level. We repeated heard 

about the case in which a private citizen is denied service by a 

photo finisher to reproduce or repair a photograph of her grandparents. While the private citizen may be making fair use, the commercial shop would be liable for infringement under current law. 

Other examples are important on a broader level. If a documentary film maker cannot identify or locate the copyright owner of 

rare footage or images that are critical to his work, he cannot satisfy his insurance company, the television station, his distributor, 

or other business entities who demand proof of rights clearances. 

The only option for the film maker other than to exclude the Orphan Works is to take on all the risk of exposure and liability and 

to fully indemnify the corporate partners including against an injunction that could kill the entire film. Not surprisingly, many 

choose to pull the material and the public is poorer for it. 

17 

In 2006, film maker June Cross testified that important materials, many of them jewels of our culture, are unavailable for use 

because ownership cannot be determined. 

A good example of an orphan work is a photograph cited by some 

news organizations this week. The photograph is of 8-year-old 

Helen Keller holding a doll and sitting with her teacher, Anne Sullivan. The photograph was discovered by the New England Historic 

Genealogical Society in a collection of materials donated by an 87- 

year-old Bostonian last June. 

There is no identifying information on the photograph yet, incidentally, researchers were still able to ascertain both the place of 

the photograph and the date of its creation: Cape Cod, 1888. It appears to be the earliest photograph of Helen with her teacher. 

There are many reasons why the issue of Orphan Works has become such a problem. Most of the problems are caused by major 

changes to our law made in the last 30 years to bring it into compliance with international treaties. These include eliminating many 

formal requirements. As you mentioned, Mr. Berman, publication 

without notice of copyright. And the copyright term has been substantially extended. For work from the era of the Helen Keller 

photo that is anonymous and published, copyright protection is 120 

years from the date of creation. 

Under the Copyright Office’s solution, the use of an orphan work 

would still be infringing, but the remedies would be reduced to a 

level that will make many beneficial uses possible. 

A user must conduct a reasonably diligent search in good faith 

to locate the copyright owner to obtain permission. The copyright 

owner who resurfaces would still be entitled to recover against the 

user, but the remedy would be limited to reasonable compensation. 

In recent months, we have considered ways in which to provide 

more guidance to a user in the search process including a requirement that users employ the best practices that are relevant and 

that are available from copyright owner and user groups. 

As you mentioned, Mr. Berman, technology is an important aspect of best practices. We are impressed by the various products 

that exist and are being developed in the private sector, including 

image recognition, water marking, and fingerprinting products. 

We are confident that these will help users find owners. 

Finally, it may never be clear who owns the copyright in the photograph of Helen Keller and millions of other important works. 

Where there are copyright owners, we believe their ownership interests should be preserved. But we also believe that the liability 

of good faith users should reflect the market value of the use. 

The Copyright Office looks forward to legislation addressing the 

problems of Orphan Works and offers its services to assist you in 

achieving that result. 

Thank you. 

[The prepared statement of Ms. Peters follows:] 

18 

PREPARED STATEMENT OF MARYBETH PETERS


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Mr. BERMAN. Mr. Adler? 

TESTIMONY OF ALLAN ADLER, VICE PRESIDENT OF LEGAL 

AND GOVERNMENTAL AFFAIRS, ASSOCIATION OF AMERICAN 

PUBLISHERS, INC., WASHINGTON, DC 

Mr. ADLER. Thank you, Mr. Chairman, Mr. Coble, and Members 

of the Subcommittee. 

Book publishers are both producers and users of copyrighted 

works and have experienced the frustrations of the Orphan Works 

problem in seeking necessary permissions to incorporate photographs, illustrations, unpublished correspondence, and other thirdparty copyrighted works into the literary works they publish. 

Consequently, publishers have long supported development of a 

scheme within copyright law that will effectively address this issue 

without doing harm to the basic rights of copyright owners. 

Publishers thought the Copyright Office report did an excellent 

job in defining the nature of the orphan work problem and advocating a straightforward framework that would be applicable to a 

variety of copyrightable works and their many uses. 

That framework, further developed in the proposed Orphan 

Works Act of 2006, is based on the following premise: If the infringing user of a copyrighted work has first performed a reasonably 

diligent but ultimately unsuccessful search to identify or locate the 

copyright owner to obtain permission, then that infringing user 

would be eligible for limitations on the compensation and injunctive remedies that the copyright owner could obtain if the owner 

turns up and pursues an infringement claim subsequent to the 

commencement of such infringing use. 

Although publishers have some unresolved concerns about the 

2006 bill, AAP believes the Subcommittee-approved version of that 

legislation should be the starting point for efforts to enact Orphan 

Works legislation in the current Congress. 

In my written statement, I have noted several ways in which the 

2006 bill fleshed out the all-important concept of what constitutes 

a reasonably diligent search. 

While it is critical to get this concept right in the legislation, a 

clear consensus on satisfactory criteria has not been readily forthcoming. 

On the one hand, the criteria need to be sufficient to thwart 

fraudulent search claims and to justify permitting an infringing 

use to proceed under protection of a limitation on remedies should 

the copyright owner subsequently surface. 

In effect then, they should be sufficient to ensure that in the vast 

majority of cases, the performance of a reasonably diligent search 

will mean that it is highly unlikely to the copyright owner will surface after the infringing use is commenced. 

On the other hand, the criteria need to be sufficiently reasonable 

and realistic so that the task of conducting a qualifying search will 

not seem so difficult as to discourage all but the most well-heeled 

would be users from pursuing the use of a particular work solely 

because they cannot identify or locate the copyright owner. 

The 2006 bill had a number of specific requirements that helped 

to make the concept of a reasonably diligent search meaningful, 

31 

and these can be built upon as necessary to develop a consensus 

among stakeholders. 

My written statement also explains publishers’ views on additional work necessary to resolve questions on when a person other 

than the user, who previously performed a reasonably diligent 

search, should be permitted to piggyback or rely upon the results 

of that search to claim eligibility for the billed limitation on remedies. 

The goal here is to avoid propagating the mistaken notion that 

‘‘orphan work’’ is a status designation that thereafter governs all 

future uses of that work by all users. 

Besides the reasonably diligent search requirement, the 2006 bill 

provided that the infringing users eligibility for its limitation on 

remedies depends on whether the infringing use of the work provided attribution to both the author of the work and the owner of 

the copyright. 

As explained in my written statement, publishers urge Congress 

to reconsider whether attribution should be a requirement for obtaining a limitation on remedies. And if so, whether at attribution 

to only the copyright owner should satisfy that requirement. 

Publishers believe there is more work to be done in shaping be 

the limitations on monetary and injunctive relief that would be 

available to a copyright owner who surfaces after an infringing 

user has performed a reasonably diligent search and commences infringing use of the work. 

I have explained these issues in my written statement and would 

be happy to answer questions about them. 

One final point, book publishers have heard some other producers of copyrighted works say that Orphan Works legislation will 

seriously harm their ability to protect and exploit their works. 

As noted earlier, book publishers share some of those concerns. 

In some cases, however, copyright owners who say they will be 

harmed by Orphan Works legislation also say they are unable to 

effectively protect their types of works from infringing uses under 

current law. 

The concern is about exacerbating existing infringement problems. 

Publishers believe that provisions in the 2006 bill could address 

most of these concerns insofar as they arise out of the Orphan 

Works scheme. But some of these concerns, insofar as they are 

based on problems occurring under current law, may require those 

copyright owners to take overdue action to create searchable ownership databases and use available technological means of protecting copyright within their community in the same way that 

copyright owners who produce other types of works have already 

done or are currently doing. 

Where there are current available technological solutions that 

have not yet been applied to address such problems, Congress 

should not delay the effective date of enacted legislation for application to certain types of works or exclude those works or certain 

uses of them from application of search legislation altogether except as measures of last resort. 

[The prepared statement of Mr. Adler follows:] 

32 

PREPARED STATEMENT OF ALLAN ADLER


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Mr. BERMAN. Thank you very much. 

Ms. Kevorkian? 

TESTIMONY OF CORINNE P. KEVORKIAN, PRESIDENT AND 

GENERAL MANAGER, SCHUMACHER, A DIVISION OF F. 

SCHUMACHER & COMPANY, NEW YORK, NY 

Ms. KEVORKIAN. Chairman Berman, Ranking Member Coble, and 

Members of the Subcommittee, thank you for the opportunity to 

testify on the issue of Orphan Works and the need to balance the 

interests of copyright owners and users. 

I come before you today to speak on behalf of the hundreds of 

American companies, members of the Decorative Fabrics Association, the National Textile Association, the Association of Contract 

Textiles, the Home Fashion Products Association, and the American Manufacturing Trade Coalition who will be negatively affected 

by an Orphan Works amendment to the Copyright Act, at least in 

the form heretofore proposed. 

Our members are weaving and printing mills, converters and 

textile designers, furniture manufacturers, and home fashion manufacturers. 

Most are small and mid-sized family-owned businesses. 

Collectively, our members spend several millions dollars every 

year in design development and sampling cost and have tens of 

thousands of active patterns in their lines. 

While we understand that there is a legitimate concern about 

true Orphan Works, previously-introduced legislation had the effect 

of creating orphans out of valuable visual works. It is hard to conceive under any scenario what greater public good is served by 

making a particular textile design available to a commercial enterprise which cannot locate the rightful copyright owner. 

There is simply no legitimate reason, educational, historical, cultural, or otherwise why a shower curtain manufacturer, for instance, has to use a certain design. If they are unsure of the copyright origin of a particular pattern, instead of risking the cost of 

litigation and infringement damages, they can just create their own 

design. 

The consuming public will not be cheated if it cannot buy a shower curtain or other product with a particular pattern on it. If anything, selection will be enhanced because new, original designs will 

be created. 

Every design created by textile and home furnishing companies 

is intended for commercial exploitation. They are created for the 

sole purpose of being applied to a product that can be sold and 

commercially exploited for the profit of their copyright owners. 

The inability to distinguish between abandoned copyrights and 

those whose owners are simply hard to find because a copyright notice has been removed or because the Copyright Office does not 

have a searchable database of visual work and no technology exists 

for such search, is a Catch-22 of this Orphan Works project. 

This legislation would orphan millions of valuable copyrights 

that can be otherwise be distinguished from true Orphan Works. 

And that would open the door to commercial theft on an unprecedented scale. 

44 

The Orphan Works problem can be and should be solved with 

carefully crafted, specific limited exemptions. At a minimum, any 

orphan work legislation should exclude from its reach any visual 

work that was initially created for commercial exploitation or was 

at any time commercial exploited such as textile design as such 

works are not orphan works. 

Members of the Subcommittee know all too well that Asia, and 

China in particular, it is a major source of illegal copies. An orphan 

work proposal will only further embolden these copyright violators, 

most of whom are not subject to U.S. jurisdiction, to steal our designs, claim them to be orphaned, and we sell them to 

unsuspecting or unquestioning buyers who will rely on the infringer’s claim of a reasonable search. 

Because there is no practical way to search for visual art, the 

end result is that the majority of visual artwork is likely to be 

deemed orphaned. In other words, as far as visual art is concerned, 

today almost any search is likely to be deemed diligent even if it 

has no chance of actually identifying the copyright owner. 

If an exclusion is not granted for visual works created for commercial exploitation, then at a very minimum, the proposed Orphan Works legislation should put the onus on the Copyright Office 

to develop a comprehensive database of visual works going back to 

1978 that is fully searchable through effective image-recognition 

technology. 

The Copyright Office is the natural location and guardian of such 

a database. Any Orphan Works legislation should not come into effect until after the Copyright Office has successfully demonstrated 

and certified to Congress that it has implemented such a searchable database. 

While the textile and home furnishings industry is not opposed 

to an Orphan Works solution targeted to the specific concerns of 

the not-for-profit institutions and specific categories of copyrighted 

work for specific uses, we urge Members of this Subcommittee to 

take a tailored approach and consider the impact of any legislation 

on the visual arts industry. 

At a time when the American economy is in a recession and the 

textile industry is facing increased threats from foreign competition, we urge Congress not to strip the American textile and associated industries from their one competitive advantage: their intellectual property. 

Mr. Chairman, Ranking Member Coble, and Members of the Subcommittee, I again thank you for the opportunity to bring the concerns of the textile and home furnishings industry to your attention 

as you attempt to balance the interests of copyright owners and 

users. 

We look forward to working with you in the weeks ahead and devise a workable solution to this problem. 

Thank you. 

[The prepared statement of Ms. Kevorkian follows:] 

45 

PREPARED STATEMENT OF CORINNE P. KEVORKIAN


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Mr. BERMAN. Ms. Coe? 

TESTIMONY OF KAREN C. COE, ASSOCIATE LEGAL COUNSEL, 

UNITED STATES HOLOCAUST MEMORIAL MUSEUM, WASHINGTON, DC 

Ms. COE. Chairman Berman, Ranking Member Coble, and Members of the Subcommittee, thank you for inviting me to speak this 

morning about our museum’s experience with Orphan Works. 

My comments will also reflect the experiences of other museums, 

archives, libraries, and educational institutions that have previously submitted comments to you and to the Copyright Office on 

the Orphan Works project. 

I also want to thank Marybeth Peters and the Copyright Office 

for its comprehensive report on Orphan Works and for providing 

multiple opportunities for public comments and discussion of the 

issue. 

The United States Holocaust Memorial Museum has acquired 

and currently maintains 42 millions pages of archival documents, 

77,000 photographs, and 985 hours of historical film footage. 

The majority of these materials are foreign works. Many of them 

are unpublished works, and many of them are orphan works. The 

museum acquires its orphan works in many different ways. 

We recently acquired an album of photographs that was found in 

an apartment in Germany after World War II. The individual who 

found it kept it until shortly before his death when he gave it to 

the museum. The photographer is unknown. 

The museum has been given drawings made by children of the 

Darfur region in the Sudan. We don’t know who these children are, 

where they might be located, or if they are still alive. 

The museum has obtained journals and musical scores that were 

created in concentration camps and given by their creators to other 

inmates for safe keeping, and these surviving custodial inmates or 

their families have given them to the museum. 

We don’t know whether the authors or composers are dead and, 

if so, who or where their family or other heirs might be. 

When our staff wants to use one of these orphaned works in a 

manner that requires copyright permission, we ask them to conduct 

a diligent, good-faith search to identify and locate a copyright 

owner. 

Because of the great variety of circumstances in which our works 

have been created and obtained, we allow our staff flexibility to 

structure these searches on a case-by-case basis. 

But often even a diligent search is not successful. The museum 

is, therefore, the custodian of a significant number of works that 

will not be made available to the public unless the museum assumes the risks of a copyright infringer. 

And even though these risks may be minimal, they are not ones 

that we can responsibly assume and they, thus, have a chilling effect on all our decisions regarding the use of orphan works. 

It is for this reason that we are interested in an Orphan Works 

solution that includes a safe harbor, a point at which we can consider making these materials available to the public in a variety of 

programs and media with the confidence that we are also not exposing the institution to an unknown liability. 

63 

The museum is always prepared to negotiate with a copyright 

claimant who may come forward to claim rights to an orphan work, 

but because the work may have already been published by another 

publishing house or by the museum as part of a collective work, it 

is not always possible for us to stop using the work immediately. 

We, therefore, like to have a choice to either stop the use or to 

continue the use and pay a reasonable compensation to the copyright claimant if his claim proves to be valid. For, like other museums and nonprofit cultural institutions, the museum is more than 

willing to compensate copyright owners. 

Our interest in an Orphan Works solution is not because we 

want to avoid these license fees; but the compensation does need 

to be reasonable. It needs to account for the fact that our works 

have a small and limited market among educators and scholars 

and that many of them would not be published at all if they were 

not published by the museum. 

Thank you again, Mr. Chairman and Members of the Subcommittee, for providing me this opportunity to comment on the 

Orphan Works problem. 

The authority to make these works available to the public in a 

legitimate and constructive manner will be very helpful to the museum in enabling the use of its current and future collections to 

further its educational memorial purposes. 

[The prepared statement of Ms. Coe follows:] 

64 

PREPARED STATEMENT OF KAREN COE


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Mr. BERMAN. Thank you, Ms. Coe. 

And Mr. Perlman? 

TESTIMONY OF VICTOR S. PERLMAN, GENERAL COUNSEL AND 

MANAGING DIRECTOR, AMERICAN SOCIETY OF MEDIA PHOTOGRAPHERS, INC., PHILADELPHIA, PA 

Mr. PERLMAN. Mr. Chairman, Ranking Member Coble, distinguished Members of the Subcommittee, thank you for this opportunity to present our views on Orphan Works problems and solutions. 

Our testimony today is made, not on behalf of ASMP alone, but 

on behalf of the Professional Photographers of America, the Graphic Artists’ Guild, and virtually every other major trade association 

in the United States representing the interests of freelance photographers and/or commercial artists and illustrators. 

We estimate that in the United States there are approximately 

100,000 such photographers and at least as many illustrators and 

artists. I should specify that we support today’s testimony and 

statements of Corinne Kevorkian. 

ASMP believes that the Orphan Works problem is a legitimate 

one that needs to be addressed. It is our hope to help enrich this 

Nation’s visual heritage and foster creativity, not to stifle them. 

Many of us in this room have spent a large part of the last 3 

years, at least our professional lives in the last 3 years, working 

on Orphan Works. And it is important to us of us to get this legislation done, but it is more important that we get it done correctly 

and fairly. 

To do that, the Subcommittee needs to understand some of the 

you factors relating to visual images and their creators. Most photographers are mom and pop operations with limited resources and 

no backup. 

The Department of Labor tells us that the average professional 

photographer earns under $40,000 a year. They rely on the revenues from licensing the uses of their works and selling print. They, 

obviously, have little or no reserve resources of any kind. 

One of the effects of that limited resource is that the reality is 

that they cannot afford to litigate copyright infringement cases 

even if the copyrights are registered before the infringement. Most 

states codes of ethics for lawyers require the client to pay out-ofpocket expenses rather than the attorney. And most photographers 

simply do not have the resources to pay the out-of-pocket expenses, 

let alone the legal fees involved in infringement. The fears of mass 

suits for copyright infringement are terrifying but illusory. 

Another fact is that most published imaged are likely to be considered orphan works. The business model, which is not controlled 

by the photographers or the illustrators dictates that either no 

credits are given, or where they are give they are physically distant 

from the images and are easily separated from them or lost, even 

innocently. 

Making the problem worse, there is no way to search the Copyright Office records for visual images in a meaningful way unless 

the searcher already has the very information for which he or she 

is searching. 

69 

The search technology is text-based only. There are no deposit 

copies accessible online, and there is no digital library of an archive 

of deposit copies that could be searched using image-recognition 

software. 

Even the wonders of image-recognition software, which my friend 

Maya will tell you about, would only be a partial cure because digital search technology only works on the data to which it has access. That means that it works fine for digital images that are online and on Web sites that are open to the public. 

The problem is that there are far more copyrighted images in 

analog print form than digital form. Millions, perhaps even billions, 

of images, and most of the images that are likely to be considered 

orphan works are probably the older images in print form only. 

They can only be searched digitally if they are digitized. And as 

I have made pretty clear, the photographers and illustrators simply 

do not have the resources to be able to digitize much of a lifetimes’ 

body of work when they have to eek out a living. 

Where does that leave us? ASMP and the creative community 

want to encourage, not stifle, individuals, nonfiction authors, documentarians, and museums. They are not our concern. 

Our concern is that there are opportunists who will seize on the 

Orphan Works defense and the practical inability of creators to 

pursue them in court to establish commercial ventures making 

profits from the images of others without permission and without 

having to pay for their inventory. 

These are the people who registered domain names like 

OrphanWorks.com two or 3 years ago. In the last Congress, the 

parties came to a deadlock, which we think can easily be broken. 

In our view, the problem stemmed from the fact that Orphan 

Works legislation had a fairly specific goal but the wording of the 

bill was all-encompassing. 

As we understand it, the impetus for Orphan Works legislation 

was not to create a land rush for copyrighted works, but to create 

reasonable access to orphan works for certain kinds of uses; such 

as for hobbies, social Web sites, not-fiction publications, documentary films and videos, museum exhibits, and other, what we will 

call for lack of a better work, non-commercial uses. 

However, the bill, as drafted in the last Congress, would have allowed virtually any kind of use to qualify for an Orphan Works defense. Our proposal is simply to limit the scope of an Orphan 

Works bill to cover the primary intended uses and only those uses. 

Specifically, we would proposal inserting an additional requirement to the conditions for eligibility which would be that the infringing use of the work constituted a ‘‘qualifying use.’’ 

We would then have a definition of qualifying use that would be 

something along the lines of uses by individuals for non-revenue 

producing personal or community purposes including uses on Web 

sites that do not generate revenues for the individuals using the orphaned works; uses in works of nonfiction such as books, articles, 

documentary films and videos; uses by nonprofit educational institutions, libraries, museums, or archives qualified for treatment 

under section 501(c)(3) and exhibits, including Web site displays 

and for uses that produce revenues and that are ancillary to exhibits such as souvenir sales. 

70 

Mr. BERMAN. Mr. Perlman, your time is winding down here. 

Mr. PERLMAN. The exact language needs to be refined, but that 

is our concept, and we hope that that will help move this process 

along. 

[The prepared statement of Mr. Perlman follows:] 

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PREPARED STATEMENT OF VICTOR S. PERLMAN


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Mr. BERMAN. Great. Thank you very much. 

Ms. Gura? 

TESTIMONY OF MAYA GURA, DIRECTOR OF MARKETING AND 

SALES, PICSCOUT, SAN FRANCISCO, CA 

Ms. GURA. Chairman Berman, Ranking Member Coble, and 

Members of the Subcommittee, my name is Maya Gura, and I am 

honored to testify before you today. I am here representing 

PicScout, a young technology company based in San Francisco, 

California, and Israel. 

We specialize in image recognition technology and offer image 

recognition services to our clients who are both copyrighted content 

owners and users. Our technology can match images or partial information of an image such as a single case of one person in a 

crowd with 99 percent success. 

With approximately 60 employees on board, PicScout was selected by Forbes Magazine to be a part of a ‘‘Forbes Israeli E-gang,’’ 

and we were also named one of 17 most innovative IT companies 

in Europe. PicScout’s leadership thrives on challenges. We have 

strived to provide both content owners and users with innovative 

solutions. 

For example, we offer advanced web crawling capabilities to help 

address piracy on the Web and also maintain a massive database 

of copyrighted digital files through which copyrighted owners can 

be found. Our proprietary image recognition technology was originally developed for homeland security purposes. 

Today, in the consumer marketplace, our flagship product is 

called the Image Tracker. Image Tracker manages visual content, 

including photographs, across all media globally and reports to our 

clients thousands of commercial infringement cases in a month. 

Working with the photography industry and the supporting it for 

the last 5 years, we enable our clients to proactively enforce copyrights of their valued materials by tracking the usage of their beautiful images. 

Over the years, we have established relationships with our partners and now track the use of millions of digital files stored in our 

huge, centralized database. Moreover, we have been extremely 

proactive about offering our services to photographers of all levels, 

frequently at very little cost to them in order to encourage them 

to take action against copyright violations. 

We are well aware of the problems of orphaned works in the 

copyright community and are pleased to be a part of the solution. 

We believe that PicScout and other technology companies offer 

many options to copyright owners and users alike, and we will continue to play a significant role. 

Technology and market solutions will get better and better as 

more business models develop. In the past 2 years, various solutions have begun to emerge, targeting, specifically, the orphan 

works issues. 

This is past December, PicScout was honored to present a demonstration of new products of ours, called the Content Clearance 

System, at a briefing for congressional staff organized by the Copyright Office. 

77 

Unfortunately, I am not able to demonstrate our technology for 

you today, but I would like to describe it to you. The Content 

Clearance System contains a massive, secured database of innumerable digital fingerprints and their ownership information, robust Image Recognition comparison engine, and a friendly interface 

for public queries, easy to access using the popular search engines. 

When a user unloads an orphan work to our system, it is compared to the full database of stored files and instantly provides an 

accurate result. This system targets the simple person who wants 

to use any digital file and doesn’t know who it belongs to. 

All he has to do is go online, upload this file to our clearance system using our friendly interface, and click on the search button. 

Our system will compare this file to millions of other files all registered in our secure database, and the user will receive an e-mail 

certification with copyright owner details, contact, and licensing information. 

While performing this reasonable and diligent search at little or 

no cost at all, the users will have the ability to decide whether they 

can and want to use this content. 

PicScout strongly believes that our technology can have the person who wishes to search for the owner of an orphan work to identify the ownership of the individual file even when the file is highly 

distorted. 

For example, our technology is fully capable of recognizing an 

image even when large portions of it were deleted or colorized. During our web monitoring process, we routinely identify matches 

based on small portions of visual content, and I am confident that 

we could provide the same level of accuracy when orphan works 

users search our database having only partial materials to work 

with. 

PicScout is happy to be a part of the various technology solutions 

available to the good-faith user. But even more, I am proud to support the artists and encourage the great creation of art. 

Thank you. 

[The prepared statement of Ms. Gura follows:] 

78 

PREPARED STATEMENT OF MAYA GURA


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Mr. BERMAN. Thank you very much. Very interesting. 

We will go now to questions. 

I will recognize myself for 5 minutes. Ms. Peters, I understand 

your proposal would apply to all categories of works and all uses, 

commercial as well as non-commercial, published as well as unpublished, foreign as well as those originating in the United States. 

As a general matter, it does seem like good policy to avoid special 

carve-outs. That said, in light of some of the concerns that have 

been expressed, do you think it might be possible to narrow the 

scope of Orphan Works, perhaps, for example, by excluding works 

that are applied on useful articles like shower curtains or coffee 

mugs? 

Ms. PETERS. The answer is yes. You could do that. Obviously, 

when we studied the problem, we certainly saw a broad need for 

all types of work and all types of productive uses. 

That being said, I want to see a bill enacted. And so if, in fact, 

legitimate concerns have been raised, and the goal with regard to 

productive uses that increase the knowledge of citizens of the 

United States, I don’t think necessarily that it is a textile design 

on a cup. 

Yes, we certainly are amenable to various proposals that raise legitimate concerns and, if at the end of the day, you can strike a 

compromise that really achieves the goal that we are trying to 

reach but does, in fact, limit it to particular uses, I would suggest 

that all categories of works need to be included. 

But you could look at limiting, perhaps, some of the uses. 

Mr. BERMAN. It would seem logical that the Copyright Office, 

which is already supposed to receive, deposit, and handle registration matters would be the natural location for a database of the 

copyright registry. 

What challenges exist in terms of creating—I know this is well, 

a sensitive subject—but what challenges exist in terms of creating 

an identifiable, searchable database at the office? 

Ms. PETERS. Well, let me start with, since 1978, certainly, all information concerning registered works is available online. It is 

text-based. Visual arts works: there is an issue because they don’t 

have titles and they don’t have the names of authors on them. 

But information that we gather when the photograph is registered or the textile design is registered, that information is available online. 

The issue really is the copy of the work that comes in. Copies of 

works, primarily, are to serve the Library of Congress in its acquisition for its collections and exchange program. 

The Library of Congress has the ability to, basically, ask for any 

copy to be transferred to it. The Copyright Office, basically, has 

most unpublished works, but, if you look at the legislative history, 

that work is for the registration specialist to determine the type of 

work, the information that is associated with the work, in order to 

create a record. 

If you were to look at our deposit regulations, they really didn’t 

require a high-quality print in any instances. We accept Polaroids. 

So if, in fact, you really want images and you want images to be 

searchable—which I think a lot of copyright owners would not necessarily want to have generally available—it would be a huge shift 

83 

in our mission, and it would be possible, frankly, only going forward; but I would actually submit that the Copyright Office is 

never the best way to come up with state-of-the-art technology. The 

private sector, actually, can do it much better than we can. 

So I don’t think that the cost of employing something like that 

would really serve the benefit. I see this as a business issue. Everybody needs to license their works. There needs to be a database 

started—— 

Mr. BERMAN. PicScout—— 

Ms. PETERS. Is a perfect example. I think that is where the solution is. 

Mr. BERMAN. My last question would be to Mr. Adler. The last 

question for this round, anyway, would be to Mr. Adler. 

You have heard Mr. Perlman’s proposal. I would like to get your 

reaction to it. And then I would like to get Ms. Peters’ reaction 

both to Mr. Perlman’s proposal and Mr. Adler’s reaction to Mr. 

Perlman’s. 

Mr. ADLER. Thank you, Mr. Chairman. 

While it would be wonderful, I think, for book publishers to be 

thought of as opportunists these days, I don’t think they are used 

to hearing that kind of appellation applied to them. 

Frankly, I think the problem with the proposal is that in the end, 

it proves to be too much. 

To limit this bill, for example, to nonfiction works would be 

somewhat ironic since I think that would mean that fictional 

works, which are actually considered to be—— 

Mr. BERMAN. You mean memoirs? 

Mr. ADLER. Memoirs could be—they are really the most creative 

category of works. And in some respects, that means that one of 

the purposes of this bill, which is to allow people to engage in further creativity by the use of preexisting works, would be thwarted 

if you only allowed them to be used in nonfiction works. 

And by limiting the used of the works, for example, with respect 

to commercial advertising, I wonder what that would mean, for example, to the use of an orphaned work as a book cover photograph, 

for example. 

Does that mean that you couldn’t, then, commercially advertise 

the book because you would also, in essence, be showing the photograph in a commercial ad? 

If there was some distinction made between whether or not you 

are actually using materials in commercial advertising as opposed 

to whether or not the material is being use in advertising for a 

work that is using the orphan work, then I think that might be 

something worth discussing. 

But just simply to say that works couldn’t be used in commercial 

advertising, I think, would be far too broad. 

Mr. BERMAN. And, then there is also the issue of the for-profit 

printer of the nonprofit work. 

Mr. ADLER. Right. Right. Non-revenue generating activities, of 

course, I think, would require this Committee to spend a lot of time 

in the tax code trying to design exactly how they could inaudible 

that kind of a concept into this—— 

Mr. BERMAN. Ms. Peters, your thoughts? 

Ms. PETERS. My thoughts are similar to Mr. Adler’s. 

84 

I do commend Mr. Perlman for trying to narrow the scope to 

something that is more amenable to his members, and I think that 

if that is the way you want to go, we can try to do it. But the way 

that it has been presented, it is too broad. It is too broad——a 

carve-out. 

Mr. BERMAN. Mr. Coble? 

Mr. COBLE. Thank you, Mr. Chairman. 

Good to have you all with us. 

Madam Register? 

Ms. PETERS. Yes. 

Mr. COBLE. How do you respond to Ms. Kevorkian’s statement 

that companies should not be stripped of their rights by reintroducing formalities in violation of international treaties or legalizing 

infringement through the orphaning of designs, (A), and (B), can 

you address the assertion that a work may be orphaned by the actions of a user or other third party? 

Ms. PETERS. Let me start by saying nobody is trying to strip 

owners of their rights. In fact, the goal of the legislation is for owners to recognize that they should come forward and make use of 

various registries or other ways, like PicScout, of being locatable. 

So there is no stripping of rights. We couldn’t do that under the 

international conventions. 

What we have is that where, after a diligent search, the owner 

cannot be located, then reasonable compensation for a particular 

use will be allowed. So all you are really doing is cutting back with 

regard to compensation, but you are cutting it back to what a willing buyer and a willing seller would have agreed to before at the 

time that the use was made. 

So I don’t actually see that as a huge cutting back. The most you 

can say is, statutory damages, if the work had been registered 

would not be available. So, for me, I don’t see it as a cutting back. 

Unfortunately, I knew it. 

Second part of the question, just to say a couple of words. That 

was the first part. That was your (A). 

Mr. COBLE. Yes. 

Ms. PETERS. And your (B) was? 

Mr. COBLE. Oh, the (B) was the assertion that a work may be 

orphaned by the actions of the user or a third party. 

Ms. PETERS. I am not exactly sure what that means. I would 

argue the opposite. I would argue if there is a reasonably diligent 

search, you will find the copyright owner. 

So it is not the user who is making the work an orphan; it is the 

copyright owner. It is the opposite. 

Mr. COBLE. I got you. 

Thank you, Madam Register. 

Mr. Adler, I had planned to examine you, but my Chairman beat 

me to the punch and he asked me to ask you the same question. 

So let me go to Ms. Kevorkian. Ms. Kevorkian, is it standard 

practice for textile companies to register their designs with the 

Copyright Office? 

Ms. KEVORKIAN. Yes, Mr. Coble. 

The textile industry, in general, registers thousand of designs 

every year. It is our standard practice not only to register our designs with the Copyright Office, but also put a copyright notice on 

85 

all of our printed fabric where there is a selvage, and on the ticket 

to the fabric that we sell. 

With respect to certain categories of textiles, such as woven there 

is no selvage, so there is no way of putting a copyright notice on 

the product itself; although, we do affix a ticket. 

But it is very easy to cut off that information; to remove a ticket 

from a rug, from wallpaper, because you cannot print that copyright notice and create an orphan. If you look behind you, on that 

curtain, there is no copyright notice. There is no way to put that 

copyright notice. 

And you could take that curtain and say I can’t find the copyright owner because there is no searchable database, and, therefore, I have done a reasonable search. I went to Google. I came up 

with a million hits for that particular pattern with no images. So 

I am reasonable. I can use it. 

Mr. COBLE. Well, without a comprehensive database, how do U.S. 

textile companies ensure that they are not infringing on the design 

of a third-party company? 

Ms. KEVORKIAN. It is very simple. 

Mr. COBLE.—exchanging information with each other, I imagine. 

Ms. KEVORKIAN. Well, for one thing, if it happens sometimes that 

someone will come to us and say, ‘‘Could you recreate this design 

for us?’’ If we do not have a signed certificate from the user saying 

that they either own that design, we will not do it. 

If they know who created the design, we will do a copyright 

search at the Copyright Office, which is text-based. But if you at 

least have the pattern name or the name of the author, then you 

can do that search. 

If you have neither, then, very simply, we will not use the design. It is not going to change our business model. We will create 

a new design. 

Mr. COBLE. Mr. Chairman, my red light is about to illuminate, 

so I yield back. 

Mr. BERMAN. I thank you. 

And I recognize the gentlelady from California, Ms. Lofgren, for 

5 minutes. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

As you know, I am very appreciative that we are having this 

hearing today. This has been an issue of considerable concern to 

me. 

And I remember watching the Eldred case being argued and then 

reading with great interest Justice Breyer’s comments about how 

the majority of copyright-protected material is orphaned. 

And so I do think that we need to come up with a solution that 

solves that problem for the sake of the culture, but also respects 

the copyright owners because we don’t want it run over the compensation, the legitimate compensation needs of copyright owners. 

The fact that we are having this hearing today tells me that we 

are serious about moving forward to get that balance right. I am 

interested, Marybeth Peters, about what role you think the Copyright Office really should play in solving this Orphan Works problem. 

Ms. PETERS. Absent having an image recognition database of visual arts works, we are willing to do everything we possibly can. 

86 

What issues have come up with assistance with regard to best 

practices, we have gone a long way with our new electronic database which allows people to send both an application and a deposit 

copy to us electronically and have that information available much 

more quickly than it ever has been before. 

But I will tell you that this is a problem that I personally experienced in trying to do clearances for the Library of Congress. It is 

something I care about deeply. And the Copyright Office will do everything it can in order to see enactment of a balanced Orphan 

Works bill. 

Ms. LOFGREN. Let me ask you, you mentioned the Copyright Office’s role in establishing best practices. Of course, best practices 

are in the eye of the beholder. 

How could you envision moving forward in getting a best practices established in a way that has buy-ins in the various parties? 

Ms. PETERS. I can give you an off-the-cuff answer right now, but 

if you want a really serious, detailed one, I would be—— 

Ms. LOFGREN. Well, I will take both. 

Ms. PETERS. Okay. I will be glad to send you our more thoughtful 

consideration of what you are asking. The problem with best practices, in part, is it depends on the type of the work. 

So you really have to find copyright owners, organizations of 

copyright owners, organizations of copyright users of that type of 

material. And there are many people who search and who have actually put together for people who want to find their works, kind 

of a list of things that you should do. 

Ms. LOFGREN. Right. 

Ms. PETERS. So at the very least, it would be working with all 

of these communities and trying to collect and make available their 

practices. But we could even take it a step further if the Committee 

thought that that was wise. 

But let us get back to you with a very precise answer on what 

we would be willing to do. 

Ms. LOFGREN. I would appreciate that. 

Let me ask you about—we have had testimony from the technology company in my state, nearby. There are a variety of things 

going on technologically. It is a very interesting time to be looking 

at this. 

Some people have suggested that it is the Copyright Office that 

should establish what technology we are going to use or prescribe. 

And I have seriously, very grave, reservations about that because 

the technology will move faster than the government ever can. 

Ms. PETERS. I would agree with you. 

We are not technology experts. We employ technology, sometimes 

with difficulty. I see projects, basically, blooming all over. 

I visited the Copyright Clearance Center, and they have a project 

called DiscoverWorks.org where people can put in information 

about finding things. And they have, basically, the design library 

as part of their, basically, panoply of works that you can search. 

I think that the Copyright Office should encourage technology. It 

should use technology itself to the extent that it is appropriate. 

But I don’t think that we are the ones who should be certifying 

technology. I think that actually it will come out in best practices 

87 

of the copyright owner and user groups. They will identify which 

technology probably best suits the purpose. 

Ms. LOFGREN. Thank you. That is very reassuring to me, and I 

see my time is about up. 

Mr. Chairman, I yield back. 

Mr. BERMAN. Thank you very much. 

Mr. Feeney is recognized for 5 minutes. 

Mr. FEENEY. Well, thank you Mr. Chairman. 

And it may be some of these orphaned works don’t want to be 

identified by their parents; they are proud to stand on their own. 

But I guess they don’t have much say in the matter. 

Ms. Peters, I was interested in your response that your office 

would do what they could, but absent, I think you referred to an 

image recognition database—my understanding, and I don’t know 

if any of the panelists know—my understanding of the Library of 

the Congress is working on something just like that. 

Does anybody know about the status of the development of that? 

Ms. PETERS. I could find out for you. 

I actually do a lot of projects with the Library on digital imaging 

and things like that. They are working with Flickr—they are making material available, but I was not necessarily aware of technology that is recognition. But if you want me to find out about 

it—— 

Mr. FEENEY. That would be terrific. And then the question is: 

Are they going to try to make it as comprehensive as possible? I 

guess that is almost impossible to do. People have old photographs 

stored in their attic and their garage and all over the place. 

That seems to me, the ideal if you are trying to find out whether 

somebody is using a photograph, you know, with respect to photographs, that seems to be the ideal. 

But even then, I mean, my question is: Do we have any technology experts? Assuming we had a perfect database of every photograph, for example, ever taken, would the technology be available 

to tell you whether or not superimposed photographs, you know, 

people that take part of one picture and put it into a different background, for example. 

Would that type of technology conceivably be able to expose a use 

of a prior work? Does anybody know the answer to that? 

Well maybe we will get some folks that are more competent than 

me to explain those issues. But it seems to me sort of the ideal if 

you are trying to find the original photographer. 

Ms. Kevorkian, in one of your statements, you suggested that— 

and I am going to quote you—‘‘pictorial or graphic work that was 

initially created for commercial exploitation or was at any time 

commercially exploited should be excluded.’’ 

And I guess the question there is how would a potential user 

know what the original purpose was in a lot of—wouldn’t it be sort 

of ambigious in many cases or not self-evident? 

Ms. KEVORKIAN. Well, surely, in our industry, I think it would 

be self-evident. If you take the curtain, again, behind you, the design that is featured on that curtain, the curtain was made for 

commercial exploitation. It was a useful article. And I think that 

is really where we are driving at. 

88 

If you have a useful article, it was meant to be sold. You don’t 

make fabric just to hang on your wall to look at. It is not a piece 

of artwork. The rug that we are walking on today was made to be 

sold and to be exploited. 

And our biggest concern is really that productive use of a design. 

Mr. FEENEY. Well, there are cases where it is clearly the intent 

to have a commercial purpose, but there are cases where people 

take pictures, and they don’t know what they are going to use them 

for. 

You know, you sort of decide after the fact whether a photograph 

has value. I mean, you look at magazines, whether it is National 

Geographic, I mean—in my local newspaper every weekend, we 

have readers, you know, favorite pictures. 

Well, all of a sudden, they have become commercial in a sense, 

but that wasn’t the original tourist’s intent; they just happened to 

catch some special moments. 

I guess we have some definitional problems there when we are— 

it is hard to look at a lot of pieces of art and decide when the intent 

of the photographer was or the artist. 

Ms. KEVORKIAN. Right. In the case of photographs, I agree with 

you, Mr. Feeney, that it would not be as self-evident. 

But in a case of useful articles, I think it is self-evident. And that 

is really one way to address this problem would be to exclude that 

category of product or uses. 

Mr. FEENEY. Anything we do need to take into account these ambiguities because you want a black and white law, in my opinion, 

that everybody understands. 

And then, finally, Mr. Perlman, you suggested that the user community would be the primary beneficiaries from an Orphan Works 

legislation, not the creator or the owner communities. 

But wouldn’t it be beneficial if you are a creator and somebody 

goes through a diligent search to find you to ask permission, isn’t 

there some potential benefit to the owner or creator of works if we 

would require some sort of diligent search before use? 

Mr. PERLMAN. Sure. But that exists today. What we are talking 

about here is a carve-down of owners’ rights. And that is what the 

legislation is all about. Do we think that it is appropriate in some 

circumstances? Yes. 

But, you know, make no mistake about it, what we are doing is 

carving back on owners’ rights. 

Mr. FEENEY. If I can, just for a second, Mr. Chairman. 

The only analogy I have—and this is a fascinating aspect of IT, 

but we actually dealt with a related orphan issues involving real, 

live babies and adoption proceedings in the state legislature of 

Florida. And I am sure other legislatures have this problem. 

You don’t know where dad is, for example, so you have to go 

through an adoption process, notifying dad, finding dad or at least 

trying to find and notify dad becomes very important. 

And we have dealt with similar issues so that reasonable 

search—and if you couldn’t find the dad after a reasonable search, 

there was an avenue for mom to put the baby up for adoption or 

for that adoption to be final. 

So we need some finality here after a reasonable search if we are 

going to do something. 

89 

Thank you. I yield back. 

Mr. BERMAN. The time of the gentleman is expired. 

The gentleman from Georgia, Mr. Johnson. 

Mr. JOHNSON. Thank you Mr. Chairman. 

Mr. BERMAN. And let me just say, we have two votes. Let’s see 

if we can finish up before we have to go. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

To any of the witnesses who would care to respond. Do the proposed limitations on monetary and injunctive relief represent a fair 

balance between the rights of the owner and the desires of the 

user? 

Ms. PETERS. I am, obviously, going to say yes. 

What is not available is statutory damages. And there has been 

a question is that fair, especially if you have registered the work. 

I will argue that statutory damages are an enhanced remedy. 

Foreign owners don’t actually get it unless they actually register 

with us as well as domestic owners. 

And we are not talking about works that are pirated. What we 

are talking about is someone who wants to use the work, who 

wants to find the owner, who wants to negotiate a license, and they 

have done all the reasonable things that they can in order to find 

that owner. 

And if that owner shows up, either a deal will be struck, or the 

owner will say no. But if, in fact, the owner isn’t found, then what 

they get is close to the deal that they would have struck. 

It would be what a reasonable buyer and a reasonable seller 

would have agreed to at the time of the use, and there are numbers 

that various industries have on what a particular use, especially in 

the visual arts, on what somebody would pay for a particular use. 

So I will argue that I think that this is a fair balance, and it is 

not a major cut-back on owners’ rights. 

Mr. JOHNSON. Thank you, Ms. Peters. 

Yes? 

Mr. PERLMAN. I think I might say that it isn’t a totally fair balance. It may be a balance that we can live with depending on what 

the whole package looks like. 

Ms. KEVORKIAN. If I may answer as well. 

I think that if we were in a perfect world and there were a way 

to do a reasonable search so that someone could actually assert 

that they had conducted that reasonable search, then, perhaps, we 

could address the remedies at that point as being satisfactory. 

My concern and the concern of the textile industry is that there 

is no such means of doing a reasonable search and that the reasonable compensation does not include, at least in the previous bill, attorney’s fees. 

And very often, the reasonable compensation will be far less than 

the cost of litigating in order to recover that reasonable compensation. 

And I believe that the reasonable compensation should be what 

the seller would have sold or licensed that particular copyrighted 

material at the time in that seller’s industry. 

I would also like to address the issue of injunctive relief. Oftentimes, in our industry, we license design, we give exclusive liVerDate Aug 31 2005 14:34 Nov 19, 2008 Jkt 000000 PO 00000 Frm 00093 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\031308\41420.000 HJUD1 PsN: DOUGA
90 

censes, and there may be industries or particular uses for which we 

would have never granted a license in the first place. 

And if our designs are incorporated into a derivative work, then 

we find ourselves in situations where that design lives on into another piece of work which we may not find satisfactory to us even 

if reasonable compensation is accorded. 

Mr. JOHNSON. Thank you. 

Yes, sir? 

Mr. ADLER. I represent an industry of copyright owners who 

would naturally be concerned if they felt that their remedies were 

being unfairly reduced. 

I think it is important to point out that copyright owners, to 

some extent, hold their fate in their own hands with respect to the 

orphan works scheme. 

To the extent that they can make themselves available in the 

sense that they can be identified and be located in connection with 

their works, then their works won’t be subject to this scheme at all. 

To the extent that somebody first has to conduct a reasonably 

diligent search which, under this scheme, by the way, has gotten 

to be far more sophisticated, I think, and a bit more tough than 

it was when originally proposed by the Copyright Office, until that 

reasonably diligent search can be documented and done and until 

the person goes ahead and actually engages in infringing use of the 

work based upon that search, the copyright owner is still fully entitled to all of the remedies available under copyright law. 

Mr. JOHNSON. Thank you. 

Are there a set of best practices that are being created in a form 

of a checklist for each, I guess, each type of work: music, visual 

arts, these kinds of things? 

Is there a checklist being created of best practices? 

Ms. PETERS. I can try to answer. 

I don’t think there is a checklist, per se. There are best practices 

that exist. 

We anticipate that best practices will be developed. 

Technology is part of the searching tools. You don’t want them 

frozen in place because new technology can come tomorrow to do 

something that the industry agrees that that is something everybody should serve. 

But the Copyright Office is willing to assist in gathering best 

practices and playing a constructive role in making best practices 

widely known to people who might be users. 

So, yes. Best practices are critical. Users will be part of the process. Copyright owners will be part of the process. The Copyright 

Office will assist in any way it can. 

Mr. BERMAN. The time of the gentleman haas expired, I am 

sorry, just because we have a vote called. I want to give the 

gentlelady from Texas a chance to question. So I think I am going 

to recognize her. 

We have about 6 minutes left before we have to be on the floor. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman, and 

thank you for this hearing. 

I think the depth of this Committee under your leadership is important as we explore the numerous issues dealing with property, 

intellectual property. 

91 

Let me ask Ms. Peters what the knowledge she has of how other 

nations treat orphaned works. And are any of these lessons applicable to the United States? 

Ms. PETERS. When we did the study, we actually looked at what 

was going on in other countries. 

The one system that is just to our north in Canada, there is a 

statutory license for published works that is administered by the 

Copyright Royalty Board. We looked at that and we rejected that. 

Europe is now looking at the issue but hasn’t really come up 

with a solution. It is an emerging issue in most countries, but the 

solutions, other than the one I identified—— 

Ms. JACKSON LEE. And Canada’s solution, again, was what? 

Ms. PETERS. It is basically a statutory license when you cannot 

find the copyright owner, you go to the Copyright Royalty 

Board—— 

Ms. JACKSON LEE. Would that be the same as like governmentmanaged compulsory—— 

Ms. PETERS. Yes, exactly. 

Ms. JACKSON LEE. And that is been rejected? 

Ms. PETERS. And they set rates and things like that. 

Ms. JACKSON LEE. Let me go—— 

Ms. PETERS.—chose not to do a basically compulsory license per 

se, but to encourage people to make themselves known and then 

just to limit the remedy. 

Ms. JACKSON LEE. Ms. Coe? Did I say that right? I am not saying 

it right. Coe? 

Ms. COE. Coe. 

Ms. JACKSON LEE. Thank you. 

Give me, quickly, your dilemma—and we are rushing to the 

floor—with the Holocaust Museum and Orphan Works. 

How does that impact you? And I forgive you for not hearing out 

for testimony. 

Ms. COE. Well, just simply that a substantial number of our 

works are orphan works. And because we cannot find the copyright 

owner to get permission, we are very limited in how we can use 

those works. 

This conflicts with our, be it statutory mandate, which is to really disseminate this information to the American public. 

Ms. JACKSON LEE. Would you welcome a system in the government that would allow you to pay a fee, an assessment, into a patent office trust fund? 

You could use it and then if the individuals were ever to be 

found, there would at least be some compensation there for them 

and you would have at least some umbrella of utilization of these 

works that you need to use. 

Ms. COE. Well, I think we—as I mentioned, we already have the 

resources to offer reasonable compensation to a copyright owner. 

I wouldn’t think of when you were mentioning as—— 

Ms. JACKSON LEE. If you couldn’t find them, then that fee that 

you might be willing to pay would be assessed by the government 

and it would be in a trust fund. 

Would that be something that you could consider? 

Ms. COE. Well, yes, we could consider that. That is right. I have 

to think about it. 

92 

Ms. JACKSON LEE. Let me just conclude, Mr. Chairman, knowing 

that we have to go to the floor, and indicate that I have a number 

of questions, and I will submit them for the record. 

I yield back. 

Mr. BERMAN. And, I believe Mr. Johnson also has some questions 

he will submit to the record. I have a few more we may submit. 

I do want to mention to Mr. Perlman and Ms. Kevorkian that we 

are intending to try and put together a bill. 

You have tried to make some suggestions in how to deal with it, 

but I don’t think you should relax with the sense that this is just 

a hearing and it is all going away, because that isn’t our intention. 

I understand very well your very real and particular concerns in 

the areas of your works that you are speaking to today. But we 

have to find a practical way to deal with that. 

And with that, I will adjourn the hearing, and thank you very 

much for your cooperation. 

[Whereupon, at 11:30 a.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS, AND MEMBER, SUBCOMMITTEE ON

COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY


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