House Judiciary Committee – Orphan Works Testimony by PLUS CEO
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House Judiciary Committee – Orphan Works Testimony by PLUS CEO

November 20, 2019


Good afternoon ladies and gentlemen
welcome to our hearing today on preservation and reuse. Several of the witnesses have thanked me for letting you be here. Thank you all for responding to our
invitation to be with us today we’re delighted to have a very distinguished panel. Prior to
hearing from our witnesses I’ve noticed that the Chairman of the Judiciary Committee has arrived and I’m
pleased to recognize the distinguished gentleman from Virginia Mister Goodlatte for his opening statement. Well
thank you very much Mister Chairman for holding this hearing and for your forbearance this afternoon. The subcommittee
will hear about the preservation and reuse of copyrighted works. This issue is becoming a more urgent
issue for american culture as copyrighted works deteriorate with
age. Last spring I visited the Packard campus of the Library of Congress in
Culpeper Virginia and witnessed firsthand not only the
depth of our nation’s great cultural history history but also the preservation challenges
caused by the passage of time and i encourage all members of the committee
– it’s not that great a distance out to Culpeper and its fascinating experience I commend it to you and hope
members will get out there. Along with the chairman the head of this
facility is testifying this afternoon and he has brought with him some
examples of the deterioration caused by age and poor storage conditions. in the 1976
Copyright Act Congress included several provisions in Section 108 to address preservation and reuse issues however like many of
the 1976 provisions section 108 is woefully outdated for the
digital age. In 2005 the Library of Congress and the
Copyright Office convened a group experts to make
recommendations on updating section 108. Two of the participants
in the section 108 study group are
testifying today. As they will no doubt highlight –
agreement has was reached on some but not all
potential updates. Recently some have suggested that
instead of updating section 108 for the digital age preservation activity should be covered
by the fair use provisions of section 107. Well it is probably true
that there are clear-cut cases in which fair use would apply to preservation
activities fair use is not always easy to determine
even to those with large legal budgets. Those with smaller legal budgets or a
simple desire to focus their limited resources on preservation may
prefer to have better statutory guidance than exists today. Another issue we will look at today is
how to best allow access to works that may have been
abandoned. In 2006 and 2008 this committee considered orphan works
legislation. In the Senate passed similar legislation in 2008 by a voice
vote. In a sign of how quickly technology and
business models advance since then a coalition of photographers
visual artists and potential orphan works users have worked together to develop a
technology platform to better enable the connection of
copyright owners to potential orphan works. With those interested in using them in
addition not have the earlier legislation
addressed the mass digitization issue at a minimum congress needs to
ensure that any legislative activity in this area
can accommodate such rapid progress. I look forward to
hearing more about these and other preservation and reuse issues from our witnesses
welcome all of you today and I yield back the balance of my time
and I thank the Chairman. I’m now pleased to recognize the
distinguished lady from California who has asked permission to introduce
our fifth and final, our 6th and final witness.
Thank you mister chair I have the pleasure of introducing
professor Jeffrey Sedlik who is the president and CEO of PLUS
Coalition a nonprofit that seeks to connect images to rights holders and rights information. he’s also an educator at the Art Center
College Design in Pasadena California and the City of Pasadena is
in my district. In addition I’m delighted to say that
professor Sedlik is my constituent. Thank Professor Sedlik
for testifying today in representing the voices of independent visual
artists. I thank the gentle lady, Mr. Sedlik. Chairman Goodlatte., chairman Coble, ranking
member Nadler, members of the subcommittee thank you for the
opportunity to testify today on the preservation and reuse of copyrighted
works. Chairman Goodlatte thank you for referring to PLUS in
praising our efforts in your opening statements and congresswoman Chu thank you very
much for the personal introduction. In addition to my role as president and
CEO of the nonprofit PLUS coalition I’m a professional photographer with 30 years
experience. I’m also an educator, having served for
twenty years as a professor at the Art Center College of Design in Pasadena California. while much to the public
discussion debate on copyright issues focuses on big business we must not
forget that copyright is the engine of free expression for independent visual
creators and other authors and that licensing the use and reuse
of their copyrights as provided under Title 17 is typically the only
means by which such creators were able to support
themselves and their families and to afford to create new works for
the ultimate benefit the publi. Despite the significant
ongoing efforts visual artist protect their works by appending identifying
information to each new work prior to distribution. This information is
often lost or removed upon distribution of the works with
instantaneous worldwide distribution of images occurring, upon first publication
millions of newly orphaned images are injected into the global ecosystem
system on a daily basis. As result publishers museums libraries researchers documentary film makers and
the public dedicate considerable time and resources to attempt to identify and contact rights
holders were to see permissions to make use a visual works
often in significant quantities. With demand for visual content
increasing exponentially many organizations now face the daunting challenge of managing
millions of visual works. At that scale the
management of image rights seems an impossible challenge but solving this challenge is entirely
possible. In the not-too-distant past there were no barcodes on any product in the store, there are no
ISBNs on any book on any shelf. These and other
standardized persistent identification systems are now ubiquitous providing instantaneous global access to
that vital information and successfully serving as the backbone
for commerce and other activities. The lack of a similar identification system for
visual works is at the root of many of the most significant challenges
faced by image creator’s publishers the public and the cultural
heritage community. By employing persistent identifiers in
combination with image recognition technologies in a system of interconnected registries we can provide
instantaneous automated global access to image rights information. At the suggestion of the
Copyright Office the PLUS coalition was founded in 2004 as a multi-stakeholder initiative
charged with addressing this challenge. A nonpartisan industry neutral
non-profit organization – PLUS is operated by and for all
communities engaged in creating distributing using and preserving images. Members of the coalition include
publishers, museums, libraries, educational institutions, advertising
agencies, design firms, photographers, illustrators, stock photo
libraries, standards bodies, and other interested parties spanning 117
countries. This diverse spectrum of stakeholder
communities has established common ground by jointly founding and operating the PLUS
coalition as a vehicle for intense collaboration on a tightly focused
mission to connect images to rights holders
and rights information. On a global scale this committee has
consistently reminded and encouraged stakeholder communities to cooperate in addressing and resolving the ever
present challenges at the nexus of copyright and technology. I’m glad to report to the
committee that the PLUS coalition after 10 years of success
is a real world example of the remarkable progress the can be
achieved by stakeholder cooperation. Toward that success the PLUS coalition
first established a system of standards facilitating the identification
of rights holders and the communication and management of image copyright information. Essentially
the PLUS standard is providing the equivalent of a UPC or bar code system for
visual works. With a global rights language in place
we are now developing the PLUS registry at PLUSregistry.org as a non-profit
international hub for image right information
connecting all registries in all countries. Using the PLUS registry
anyone in any country will be able to instantly
identify the creator, rights holder, and descriptive information
associated with any registered visual work even in the event that work was
distributed many years ago and bears no identifying information.
Museums libraries and archives will use the PLUS registry to facilitate
preservation and to maximize public access. Creators
and other image right tools will use the PLUS registry to ensure that they can be
easily found and contacted by anyone seeking information about their
visual works. Publishers and other businesses will use
the PLUS registry for identifying and contacting image rights holders and to manage image rights associated
with vast quantities of works. Search engines will use the PLUS
registry to automate rights management while individuals and businesses to make
informed decisions about using visual works. Persistent attribution is not only the
key to ensuring the survival of independent visual artists but is vital
to the success of all rights owners and distributors engaged in the licensing and use and reuse of visual
works. Importantly persist attribution in combination
with fair use and other exceptions is also the key to ensuring that museums libraries and
archives are best able to preserve visual works and to maximize public
access to our cultural heritage. Thank you for your time and
consideration I look for taking your questions. Thank you Mr. Sedlik, and thanks to each of
you. Mr. Sedlik I have consistently supported
photographers how have their business models been
altered by digitalization for photographers are they flourishing or
still adapting to the digital age? Chairman Coble the photographers are still
adapting to the digital age and making their best efforts to
identify their works. The most challenging aspect of being a photographer today is
ensuring that your works are identifiable after they leave your
hands. If we can achieve that photographers
will be able to make a living from their creative works during their
copyright life and society will benefit to the maximum. Thank you sir. The
distinguished gentleman from Pennsylvania Mr. Moreno. Thank you Mr. Chairman
an issue here in – I think you danced around a little bit
but I didn’t quite get the gist of what you’re trying to say, we’re
could be wrong on this totally but when you hear my question you understand – how we gonna pay for this? I would like each of you to respond to that if
you’d like to. Congressman Marino i would I would
also bring up the fact that the there are hundreds of millions of works
sitting in the collections undigitized by individual artists illustrators and painters in particular
have a problem in digitizing their works. These works have not yet been seen by the library or by
any library – these are a record of our time they’re part
of the fabric of our cultural heritage and digitization thank you I yield back. The gentleman from florida thank you Mr.
Chairman. Mr. Sedlik what is changed in the
photography world since the original discussions about orphan works
legislation and have positions of photographers
towards these orphan works changed and if so how? The photography organizations have come
together to attempt to reach consensus in the
interim. I don’t know that they have reached
consensus however you – I believe that you’ll find that the
photographers and illustrators are very open to cultural heritage type
usage – usages, non commercial in nature of their works. There still remains the concern in
distinguishing between commercial and non-commercial usages of orphan works but I I think that you’ll find that the
photography groups acknowledge the that society is the
ultimate beneficiary of copyright law. The issue that they see is that if if your copyright is a tree you don’t wanna
chop the tree down to provide the public with access to the apples. You wanna put a ladder up and let people get apples
and keep the tree growing strong in producing apples indefinitely. Great I’m out of time I yield
back to the Chairman I thank the gentleman. Ms. Lofgren
Thank you very much and this has been a very interesting session. I, here’s a question I have. Miss
Constantine you – what you’ve outlined is not exactly what
we discussed but you know it’s along those lines. Where you do a search and if you couldn’t find
then you could use it if that person – I mean if
the person owns a copyright they own it so if they want to opt out
that’s up to them they can make a deal separately, but if you can’t find the
owner that’s something else you don’t wanna wall off from the culture and visual artists
objected to that. What is your take on Miss Constantine’s
proposal Mr. Sedlik? I think that, first of all PLUS is not an advocacy
organization – no I understand but I’m just interested in your in your view. I would say that you would find that the visual artists
felt threatened because of the inability to distinguish between works that were older and works that
were created five minutes ago. If I as a photographer create a work now
and wish to publish it it’s going to be stripped of it’s identifying
information and end up being circulated and used and being
orphaned no matter – well that’s not really orphaned
it’s being infringed – correct correct and I think that this
was threat to visual artist perceive. A couple of
other issues that the visual artists had were the inability to stop objectionable
use if their works once orphaned were out
there being used in a manner that was counter to the
beliefs of the creator and didn’t fall under fair use,
that was an issue. Competitive use – let’s say one of my images
ended up being picked up by someone else who founded it – did a diligent search
didn’t find me and begins making posters or something some
products with my images and then a violation of my exclusive – more
of my exclusive rights meaning that let’s say I was to have an exclusive license with
with one of my images to some party and somebody else picks it up
as an orphan work and begins using it in a manner that conflicts with
my exclusive license. The issue of being able to get all my works
into a registry – so that I could be found it’s going to
take years hundreds of thousands of images per artist being either digitized or
or brought into a registry. The issue of reasonable compensation some
works are more rare than others – yep – in this this can become an issue –
if I can – I get the drift. In it we even talked
about eliminating the visual arts from the orphan work proposal and there
was objection to that as well. Do you object – if we were able to craft an orphan works scheme that everybody else agreed to, but we excluded the visual arts would there
be objection to that? The photographer in me would have no
objection to that, however the PLUS coalition has libraries museums the archives
educational institutions and these works should they actually be
orphaned eventually have tremendous value to our society and
I don’t know that we can exclude orphan works or exclude visual works from the orphan
works act we might have to treat them in a special manner. well I’m just going to, I, my time is just
about out, uh discussion with that my time is out. Mr. Chairman thank you very
much. Again we’ll express our thanks to the distinguished panel who has joined us today. This concludes today’s
hearings, thanks to all of our witnesses for attending today. Without objection as I said
previously that all members will have five legislative days to submit additional written questions for
the witnesses or additional materials for the record. This hearing is adjourned.

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  1. John thanks for posting this! I gotta remember to lose the gum before I sit behind someone who's testifying!

  2. Thanks John.  God, I hope they don't screw this up. I'm afraid they will though. Hopefully they also heard from PPA and ASMP.

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