USC Clinic Submits Comment on Behalf of IDA, Film Independent on Orphan Works

Last week, the USC Intellectual Property and Technology Law Clinic continued its advocacy efforts on behalf of documentary and independent filmmakers seeking reform on the issue of orphan works, copyrighted works for which the original rights holder cannot be identified or located. Many documentary filmmakers use existing copyrighted works when editing together their films, typically in the form of archival material. Sometimes a filmmaker may rely on fair use, but often he or she needs to obtain a license. When a work is orphaned, obtaining a license is impossible: how do you get a license when you cannot find the owner, or even determine who the owner is? This means that if a filmmaker wants to use an orphan work, he or she must do so under threat that someone claiming to be the rightsholder will emerge and sue for infringement.

It is for this reason that the Clinic submitted a public comment to the United States Copyright Office on behalf of the IDA and Film Independent with the co-counsel Michael C. Donaldson. Earlier in 2014, the US Copyright Office held roundtable discussions and sought public comments on orphan works and how they relate to larger preservation efforts. This March, Clinic interns Patrick Boyle, Patrick McCormick, and Professor and IDA Board Member Jack Lerner participated in the roundtable hearings. Last week's comment is a follow up to those discussions.

Legislative reform is urgently needed, and IDA and FIND continue to support the balanced approach to reform that the Copyright Office recommended in 2006: permit the use of orphan works after the user has done a diligent search, while compensating rightsholders who resurface and limiting harsh remedies such as statutory damages and injunctions for those who have done a search in good faith. We are pleased that the Copyright Office continues to pursue orphan works reform, and we look forward to the next steps in this process.

Transcripts from the roundtable discussions can be found here and here.

Information on the Copyright’s Office’s orphan works policy making activities.

A version of this post was originally published at the Intellectual Property and Technology Law Clinic blog.