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Thank you for posting this in his journal. This is a video of a hearing of a Subcommittee of the Judiciary of the House of Representatives known as the Subcommittee on Courts, the Internet, and Intellectual Property.

I absolutely recommend that anyone who is gravely concerned about the use and Definition of Orphan Works watch this video. It is 1 1/2 hours but watching the first 1 hour is sufficient as they go into a Q & A sessions after that point.

I want to highlight some of the arguments that were presented in the first hour. And I want to point out that all concern expressed about the bill from people on both sides of the argument was the same, that A) The wording of the bill should not open the flood gates to allow commercial use of copyrighted images belonging to a living and locatable owner and B) That the intent of the bill to allow non-profits and educational sectors to have easier access to Orphan Works is important.

The subcommittee wants to protect copyright owners yet allow use of Orphan Works by non-profit and educational sectors. It also wants to provide for reasonable compensation should an image be used and the copyright owner reappears and sues for damages. This is intended not only to protect copyright owners but to protect non-profits from incurring excessive legal costs after making a reasonable, yet unsuccessful, effort to locate the copyright owner.

It was repeatedly stated that the bill should include wording that would prevent the commercial and for profit use of Orphaned Works. The consensus seems to be that the importance of the availability of Orphan Works is for the intent of the preservation and educational use of historical works by non-profit organizations.

The current copyright term of intellectual property is 120 years from the date of creation, which in many cases prevents museums, archives and documentary film makers to make use of orphaned works in the interest of preserving those works and making them available to the public for non-profit, educational purposes. In the meantime it also prevents restoration of some photos, film and artworks due to fear of copyright infringement which currently can come at a great legal costs to non-profit organizations.

In some cases a good faith search is currently not possible, one such example was a family who donated a box of photos from WWII to the holocaust museum. The family are considered custodial owners as they did not take the photographs. The photographer cannot be located. however the Holocaust Museum does not make use of these images due to fears of litigation.

It was suggested that copyright owners be required to use digital fingerprinting or watermarking and that would be users conduct a reasonable search using these technologies.

A call was made for distinguishing limited exemptions from the Orphan Works definition to exclude designs created for commercial purposes.

A call was made for the exclusion of many visual works and the creation of a searchable database by the Copyright Office.

A searchable database currently exists (Image Tracker) that can help enforce copyright ownership. It is currently available at low cost, using it's web based interface you can upload an image which will be matched against millions of images already stored in the database. The database can locate the original even if the image has been distorted or is a partial image.

A call was made for the definition of qualified use to protect existing copyright owners.

Concern was expressed that many freelance artists, home crafts designers and freelance photographers earn very little and cannot currently afford litigation if their images are used without permission and that the bill should not exacerbate this problem.

Currently images stored online make it easier to locate the rightful owner (and thus prevent unlawful use) than those that are not online, however in some cases the cost of transferring a lifetime of work to a digital format would come at a prohibitive cost.

It was suggested that there be a narrowing of the definition of Orphan Works to exclude certain types of images, such as textile patterns or t-shirt and coffee mug designs.

It was stated that museums are willing to pay compensation for use of an image should the copyright owner reappear, but they would like this compensation to be reasonable and limited to protect the viability of their non-profit organization.

The subcommittee acknowledges the concerns of existing copyright owners that they may no longer be able to protect their intellectual property given the wording of the 2006 proposed bill and that the wording must be carefully drafted to protect their rights.

It was suggested that only not for profit organizations be allowed to make use of orphan works.

While watching this hearing I asked myself the following question. What if a member of Deviant Art dies? Considering the fact that DA does not currently delete user profiles, does Deviant Art subsequently become the custodial owner of the contents of the deceased artists gallery? It should be a relief to anyone posting their art on DA that simple use of watermarking goes a long way to protect your ownership rights and locatability. However, what happens should you die and your gallery still contains all of your works. I wonder if the administration of DA has made provisions for such an occurrence and what gallery owners can do in terms of electing a member of their family or a specific business as the custodial owner of their art. If anyone knows the answer to this please let me know. If not I would like to call upon DA to address this matter and make a news release available to DA members. Thank you.