The question of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self­-interested parties.[1]

Definition Edit

An orphan work is

an original work of authorship for which a good faith, prospective user cannot readily identify and/or locate the copyright owner(s) in a situation where permission from the copyright owner(s) is necessary as a matter of law.[2]

Overview Edit

"Under current law, anyone who uses an orphan work without permission runs the risk that the copyright owner(s) may bring an infringement lawsuit for substantial damages, attorneys' fees, and/or injunctive relief unless a specific exception or limitation to copyright applies. In such a situation, a productive and beneficial use of the work may be inhibited — 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 identify and/or locate the owner and therefore cannot determine whether, or under what conditions, he or she may make use of the work. This outcome is difficult if not impossible to reconcile with the objectives of the copyright system and may unduly restrict access to millions of works that might otherwise be available to the public (e.g., for use in research, education, mainstream books, or documentary films)."[3]

The most common obstacles to successfully identifying and locating the copyright owner are (1) inadequate identifying information on a copy of the work itself; (2) inadequate information about copyright ownership because of a change of ownership or a change in the circumstances of the owner; (3) limitations of existing copyright ownership information sources; and (4) difficulties researching copyright information.

Orphan works are perceived to be inaccessible because of the risk of infringement liability that a user might incur if and when a copyright owner subsequently appears.

First, the economic incentive to create may be undermined by the imposition of additional costs on subsequent creators wishing to use material from existing works. Subsequent creators may be dissuaded from creating new works incorporating existing works for which the owner cannot be found because they cannot afford the risk of potential liability or even of litigation. Second, the public interest may be harmed when works cannot be made available to the public due to uncertainty over its copyright ownership and status, even when there is no longer any living person or legal entity claiming ownership of the copyright or the owner no longer has any objection to such use.[4]

Consequently, many works that are, in fact, abandoned by owners are withheld from public view and circulation because of uncertainty about the owner and the risk of liability.

The risk of infringement may be particularly burdensome when a creator incorporates a protected work into a new adaptation or transformative work. How then is public policy best served by facilitating the public’s access to and use of such a work? And how best to define what constitutes an orphan work for infringement purposes, to facilitate access to orphan works, and to promote their use without vitiating the copyright or unfairly appropriating the work into the public domain?

The uncertainty surrounding the ownership status of orphan works does not serve the objectives of the copyright system. For good faith users, orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace. The consequences of this uncertainty reverberate through all types of uses and users, all types and ages of works, and across all creative sectors. By electing to use a work without permission, users run the risk of an infringement suit resulting in litigation costs and possible damages. By foregoing use of these works, a significant part of the world's cultural heritage embodied in copyright-protected works may not be exploited and may therefore fall into the so-called "20th-century digital black hole."

Reasons for orphan works Edit

The change in the 1976 Copyright Act to providing automatic copyright protection that subsists immediately upon fixation of a work has exacerbated the orphan works issue, in that a user generally must assume that a work he wishes to use is subject to copyright protection, and often cannot confirm whether a work has fallen into the public domain by consulting the renewal registration records of the Copyright Office. It should be noted, though, that Congress was cognizant of this consequence of the switch to a life-plus-50-years system at the time it passed the 1976 Act. Congress recognized the problem, but considered it to be outweighed by the many benefits of the new system:

A point that has concerned some educational groups arose from the possibility that, since a large majority (now about 85 percent) of all copyrighted works are not renewed, a life-plus-50 year term would tie up a substantial body of material that is probably of no commercial interest but that would be more readily available for scholarly use if free of copyright restrictions. A statistical study of renewal registrations made by the Copyright Office in 1966 supports the generalization that most material which is considered to be of continuing or potential commercial value is renewed. Of the remainder, a certain proportion is of practically no value to anyone, but there are a large number of unrenewed works that have scholarly value to historians, archivists, and specialists in a variety of fields. This consideration lay behind the proposals for retaining the renewal device or for limiting the term for unpublished or unregistered works.

It is true that today’s ephemera represent tomorrow’s social history, and that works of scholarly value, which are now falling into the public domain after 29 years, would be protected much longer under the bill. Balanced against this are the burdens and expenses of renewals, the near impossibility of distinguishing between types of works in fixing a statutory term, and the extremely strong case in favor of a life-plus-50 system. Moreover, it is important to realize that the bill would not restrain scholars from using any work as source material or from making “fair use” of it; the restrictions would extend only to the unauthorized reproduction or distribution of copies of the work, its public performance, or some other use that would actually infringe the copyright owner’s exclusive rights. The advantages of a basic term of copyright enduring for the life of the author and for 50 years after the author’s death outweigh any possible disadvantages.[5]

The orphan works problem is thus a by-product of the United States’ modern copyright system, and has been with us since at least the day the 1976 Copyright Act went into effect.

U.S. copyright law provisions that relate to orphan works Edit

While U.S. copyright law does not contain an omnibus provision addressing all orphan works as such, it does contain a few provisions that permit certain users to make certain uses of certain classes of orphan works, and other provisions that reduce the risk in using an orphan work. There are thus already some “orphan works provisions” in U.S. copyright law, although they are not labeled as such. These provisions include section 108(h), section 115(b), section 504(c)(2), and the termination provisions (sections 203, 304(c), and 304(d)).[6]

Specific orphan works legislation Edit

In January 2005, the Copyright Office issued a Notice of Inquiry requesting public comment from interested parties on the subject.[7] The Copyright Office accepted written comments and hosted public roundtable discussions on the topic.

In January 2006, it issued its Report on Orphan Works (full-text), which recommended that the Copyright Act be amended to limit the remedies available against users of orphan works who (1) demonstrate that they performed a reasonably diligent search to find the copyright owner without success and (2) provide reasonable attribution to the author and copyright owner.

The limitation on remedies the Copyright Office proposed was twofold. First, it would limit monetary relief to reasonable compensation for the use — completely eliminating monetary relief where the use is noncommercial and the user ceases the use upon notice. Second, it would limit the ability of the copyright owner to obtain injunctive relief, so that a user who relied on the work’s orphan status could continue to exploit a derivative work based on that orphan work, with appropriate compensation to the right holder.

On March 8, 2006, the House Subcommittee on Courts, the Internet, and Intellectual Property held a hearing on orphan works.[8] The Senate Judiciary Committee held a hearing on April 6, 2006.[9] Congress came very close to adopting orphan works legislation in 2008, but ultimately did not do so before adjourning.

References Edit

  1. Authors Guild v. Google, Inc., 770 F. Supp. 2d 666, 677 (S.D.N.Y. 2011) (full-text).
  2. Report on Orphan Works, at 1.
  3. U.S. Copyright Office, "Orphan Works and Mass Digitization," 77 Fed. Reg. 64555 (Oct. 22, 2012).
  4. Copyright Office, Orphan Works: Notice of Inquiry, 70 Fed. Reg. 3739, 3741 (Jan. 26, 2005) (full-text).
  5. H.R. Rep. No. 94-1476, at 136 (1976).
  6. Other provisions in the Copyright Act can permit use of orphan works. For example, statutory licenses other than section 115 (such as the licenses available under sections 112, 114, and 118) can permit use of an orphan work. See 37 C.F.R. §§253.9, 260.7, 261.8, 262.8 (2005). Similarly, any of the exceptions to copyright — for example those found in section 110 — could permit use of an orphan work. These provisions are those that bear the closest resemblance to an orphan works provision, and those that are the most instructive for the drafting of an omnibus orphan works provision.
  7. Copyright Office, Orphan Works: Notice of Inquiry, 70 Fed. Reg. 3739 (Jan. 26, 2005).
  8. See House IP Panel Chairman Pledges to Move Orphan Works Legislation in ‘Coming Weeks,' 71 BNA Pat., TM & Copyright J. 521 (Mar. 17, 2006).
  9. Orphan Works: Proposals for a Legislative Solution: Hearing before the Senate Comm. on the Judiciary, 109th Cong., 2d Sess. (2006) (full-text).

See also Edit

  • Marybeth Peters, "The Importance of Orphan Works Legislation" (U.S. Copyright Office Sept. 25, 2008) (full-text).

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