CCIA filed comments with the Copyright Office Feb. 4th in response to their notice of inquiry on orphan works.  These comments identify statutory damages reform as a possible vehicle for mitigating the orphan works problem, pointing to recommendations made in the Association’s  2012 comments to the Intellectual Property Enforcement Coordinator.
As explained in the brief filing,  the three main sources of the orphan works problem are (1) the repudiation of formalities for copyright protection, (2) repeatedly lengthening copyright terms, and (3) statutory damages that do not require plaintiffs to demonstrate harm as a pre-condition to recovering large sums.  While compliance with international conventions limits reform opportunities on the first two categories, CCIA suggested several options for reforming statutory damages so they do not present as disproportionate a penalty to productive, innovative uses of existing works.  These reforms suggested address how damages are assessed by courts: (a) reduce the minimum statutory damage award, which is currently $750 per work, (b) reduce statutory damages for orphan works, (c) guide courts in awarding damages, more than just “as the court considers just,” (d) harmonize copyright willfulness with patent willfulness, and (e) require the timely election of statutory damages.
The current system has the effect of deterring productive noncommercial and commercial uses of works of minimal economic value.  Commercial entities are less likely to build upon, disseminate, digitize, aggregate, or pursue other activities, due to the potential for 6-figure awards per work. Particularly in the orphan context, where digitization involves a large number of potentially registered works, the prospects for large statutory awards are daunting.  The Copyright Office should consider mitigating the orphan works problem by suggesting Congress and the Courts reform statutory damages provisions.
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