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The Copyright Office has just released its study of problems related to “orphan works” -- copyrighted works whose owners may be impossible to identify and locate: http://www.copyright.gov/orphan/
This is an issue
that is of great importance to us and I know that many
The report is a good one for us, clearly articulating the problem and recommending new legislation to protect and empower users who make a reasonably diligent attempt to locate an owner. I provide three illustrative excerpts below to give you a flavor of the report, its conclusions, and its accommodation for libraries.
[from page 1]
This Report addresses the issue of “orphan works,” a term used to describe the situation where the owner of a copyrighted work cannot be identified and located by someone who wishes to make use of the work in a manner that requires permission of the copyright owner. Even where the user has made a reasonably diligent effort to find the owner, if the owner is not found, the user faces uncertainty – she cannot determine whether or under what conditions the owner would permit use. Where the proposed use goes beyond an exemption or limitation to copyright, the user cannot reduce the risk of copyright liability for such use, because there is always a possibility, however remote, that a copyright owner could bring an infringement action after that use has begun.
Concerns have been raised that in such a situation, a productive and beneficial use of the work is forestalled – not because the copyright owner has asserted his exclusive rights in the work, or because the user and owner cannot agree on the terms of a license – but merely because the user cannot locate the owner. Many users of copyrighted works have indicated that the risk of liability for copyright infringement, however remote, is enough to prompt them not to make use of the work. Such an outcome is not in the public interest, particularly where the copyright owner is not locatable because he no longer exists or otherwise does not care to restrain the use of his work.
[from page 7]
Our conclusions are:
• The orphan works problem is real.
• The orphan works problem is elusive to quantify and describe comprehensively.
• Some orphan works situations may be addressed by existing copyright law, but many are not.
• Legislation is necessary to provide a meaningful solution to the orphan works problem as we know it today.
We recommend that the orphan works issue be addressed by an amendment to the Copyright Act’s remedies section.
[from page 122-123]
The Large-Scale Access User
As described, the “Large-Scale Access User” is typically a library, archive or museum that has a large-number of works that it would like to make available to the public, such as through its web site or as part of an exhibition. Such users often deal with unpublished works that are parts of collections of material acquired through donations from individuals. In most cases the use of these materials is made as part of an overall effort to catalog, preserve and make the works accessible to the public.
Assuming the user would want to make use of a work that goes beyond any statutory exemption such as fair use, the orphan works recommendation would require the user to perform a reasonably diligent search for the owner of the copyright in the work. This user might have several leads on finding the owner, given that it is probably already performing research into areas related to the work, such as the historical context in which the work was created. Also, most users like these indicated to us that it is part of their mission to place the works in their historical context, which would include identifying and locating the creator and owner of the work. Upon completing its due diligence, the user could commence use of the work, which must include attribution to the author, if such attribution is possible, as appropriate under the circumstances. The user should make certain to document all of the steps taken to locate the owner and its attribution during use so that should the copyright owner surface, the user is able to demonstrate that it met the criteria for the orphan work limitations on remedies, and such evidence can be produced in the event of any litigation.
If the owner surfaces and claims that the user is infringing his copyright, the user has several choices. First, it can assert any limitation or exemption from copyright that might apply to its activity. Second, it can produce the evidence of reasonable search and attribution that make it eligible for the limitation on remedies in the recommendation.
If the use was noncommercial, which is likely with this type of user, and if the user expeditiously ceases infringement – say, by taking the material down from its website – then it would be subject to no monetary remedy whatsoever. Moreover, because the infringing use has stopped, ongoing injunctive relief would be irrelevant. If the user has transformed the work and made it part of a film or book that it produced and is making available, it can continue to make use of that derivative work provided it pays reasonable compensation to the owner. In no case would the user face statutory damages or attorneys’ fees.
This discussion looks at the situation from the perspective of infringement litigation ensuing. Ideally, litigation never occurs, but the owner and user negotiate in light of the available remedies and come up with a mutually acceptable resolution. For example, it might not be in the interest of the owner for the user to take down the material from the website – instead, the owner might permit such ongoing use provided the user provide a link or other contact information for the owner, which would make it easier for other users to find that owner and help defeat other claims that the work is an orphan work.
Digital Library Federation
Council on Library and Information Resources
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