Prof. Jane Ginsburg (Columbia) talked about constitutional attacks on IP law. She talked a lot about "limited times" and whether that meant something couldn't be protected, pulled back from the public domain - for example, foreign works that entered the US as public domain for whatever reason. She also talked about what power the federal government has to protect works that are not fixed and any restrictions in terms of term lengths. Could they be protected indefinitely? She proposed two powers under which this authority might arise: the Commerce Clause or the Treaty Power. The discussion focused mostly Prof. Ginsburg emphasized that the "Treaty Power is not a blank check".
Jules Sigall then spoke about orphaned works. People have asked him where the name "orphaned works" came from, but he declined to answer. His colleagues say he "runs the orphanage." He said the primary obstacle they are facing seems to be the uncertainty that inhibits use of the work. The elimination of the notice requirement exacerbated this problem - it became more difficult to know who the copyright holder was or if they intended to protect the work. The challenge is finding a middle ground. Registration is a formal solution to this problem, and he said they are reluctant to revive the traps that came along with this. At the same time, they need to ensure that the small guy can make a documentary without the uncertainty that comes along with the use. He suggested that one solution might be to offer an affirmative defense on an individual basis if the "infringing" user made a reasonable effort to identify the owner and failed.
Fred von Lohmann added the problem also revolves around remedies. We don't want to restrict the basic rights of the copyright holders, but we need to avoid unknown preliminary injunctions or statutory damages (as opposed to actual damages) if we want to encourage people to create anew.
Someone from the audience who worked at BBC said they faced these challenges every day in the broadcast world. They have two options: don't use the work, or self-insure. The problem, of course, is that the "small guy" might not have the latter option.
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