CO Brainstorming on Incentives for Holders To Notify It of Rights Licensing, Sales
Orphan works remain a huge copyright challenge for artistic creation, though lawmakers and regulators are considering new steps to improve the processes for dealing with them, panelists said during a Silicon Flatirons conference Thursday streamed from Boulder, Colorado. Tracking down rights ownership is a top burden because the Copyright Office "up until now has been a 20th-century institution, built on paper," said Kimberley Isbell, senior counsel-policy and international affairs. The CO is thinking now about how to improve its data set, particularly how to give incentives to copyright holders to notify it when interest in content has been sold or licensed, she said.
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Panelists discussed various incentives and issues for creative arts industries, from updating the copyright regime to how digital video distribution is affecting the advertising market. Lawmakers are trying to decide whether to put forward an overall package or individual pieces of legislation on orphan works, said Jason Everett, chief minority counsel of the House Subcommittee on Courts, Intellectual Property and the Internet.
Retroactive solutions "are never going to be perfect," said Public Knowledge Senior Staff Attorney John Bergmayer. Such an approach with orphan works "is a messy solution," he said. "But it's the best you can do." Bergmayer said not enough attention is being paid to preventing orphan works problems in the future, making a pitch for a system of renewal formalities. But formalities "fell out of favor in the copyright world decades ago," he said. International treaties often preclude instituting a system of formalities, Isbell said. That approach could be taken for just U.S. creators, but that has its own challenges, she said: "Politically, saying we're going to put a bigger burden on U.S. creators than foreign creators, that's a difficult proposition to sell."
Content ID systems such as used by Google's YouTube help fix the after-the-fact problem of taking down copyright-protected content or hooking up content users with copyright holders for licensing talks, said Neil Fried, MPAA senior vice president-government and regulatory affairs. "I wouldn't want to suggest we could replace copyright with a post hoc redress."
Technology such as VOD is affecting the video ad market, "slowly creating a space where what's viewed the most can be monetized at the highest levels," said Lauren Wallace, Layer3 TV company counsel. And despite the presence of DVRs and ad-skipping technology, "It's remarkable to me the number of people who don't skip ads," said Mark Lemley, Stanford University director-Program in Law, Science and Technology. Some of that may be due to ignorance about how to do so, he said, but it also could reflect the quality of ads being up considerably in recent years. Meanwhile, many online video distributors feature ads that can't be skipped, he said: "The people skipping cable are actually watching more ads." While new technologies will bring new ad opportunities, the 22 minutes per hour model "still has a lot of life left in it," said Matt Bond, NBCUniversal chairman-content distribution.
On how media companies decide what content to make available for free, such as through YouTube distribution, Bond said, "Every media company struggles with exactly how they parse that out." Making some content available for free online hasn't affected its core business materially, he said, "though that could change over time."
The idea of intellectual property protection's being a central part of revenue generation for creative-centric businesses isn't true, and different industries have different IP priorities, said Northeastern University law professor Jessica Silbey. She said her research found that the pharmaceutical industry puts a bigger premium on IP protection and the IP regime than the software industry, for example. IP protections are useful in safeguarding against exploitation, commercial photographer Christopher Boffoli said, drawing a distinction between his photography's being put on Pinterest occasionally by private individuals vs. its being used without attribution or compensation by blogs and businesses. Boffoli said he has sued Google and Pinterest for unresponsiveness in not taking down his work posted by someone else. "If I had a dollar for every time my images were infringed, I'd have my own jet on 24-hour standby," he said.