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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.
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[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.
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[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.
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[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.
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Executive Director
Digital Library Federation
Council on Library and Information Resources
Tel: 202-939-4762
Email: [log in to unmask]
Web: www.diglib.org