[PADG:396] Update on Orphan Works: Library Community Filing

[Tyra Grant <stgrant@xxxxxxxxxxxxxxxx>]

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From: ALAWASH E-MAIL <ALAWASH@xxxxxxxxxxx>

The following is an Update on Library Community Filing on Orphan Works,
helpfully provided by Prue Adler of the Association of Research Libraries.

The library community will be filing comments with the U.S. Copyright
Office in support of a proposal to change copyright law to address
issues surrounding orphan works.  Orphan works are those copyrighted
works whose owners are difficult or even impossible to find.  The
Copyright Office issued a Notice of Inquiry on January 26, 2005
(http://www.copyright.gov/fedreg/2005/70fr3739.html) soliciting advice
on the problem of orphan works.  This provides an important opportunity
to those who are interested in using works still protected under the
ever lengthening copyright terms (thanks to the Berne Convention
Implementation Act of 1988 and the Sonny Bono Copyright Term Extension
Act of 1998) but whose owners cannot be identified.

The library associations are working with many in the non-profit
community including library associations, the Glushko-Samuelson
Intellectual Property Clinic, the College Art Association (CAA), the
American Historical Association, cultural institutions, and public
interest groups in developing a "legislative fix" to the Copyright Act
to address the issues associated with orphan works.  The hope is to
draft a legislative solution that many communities and constituencies
can support. There is a strong sense that if many organizations and
interests can coalesce behind one proposal, this could be helpful in
moving the discussions forward. Once review of the draft proposal is
completed, I will post it to the directors list for your consideration.

In the interim, the following is an outline of the draft proposal.

* The definition of an orphan work is a work for which the copyright
owner cannot be reasonably located.
* The types of works to which the draft solution applies is wide in
scope - published and unpublished works and older as well as recent
works. It may be just as difficult to identify the copyright owner of a
recent photograph as an older work.
* The use of orphan works should apply to all types of uses,
not-for-profit and for profit.
* The legislative solution is not limited to specific constituencies,
e.g. libraries or educational institutions. The interest in using orphan
works is far too broad for such a limitation.
* The proposal calls for a " reasonable efforts search" by "qualified
users."   A reasonable effort would be an effort to identify and locate
copyright owners in good faith, using location tools and other
resources, and that is considered reasonable under the totality of the
circumstances. Such a user is an institution or individual who uses an
orphan work after conducting a reasonable search.
* The proposal will provide general guidance to the user as to what
constitutes a reasonable effort, e.g. use of "best practices"  developed
by relevant professional organizations (e.g. from CAA, the library
community, etc.) and information from the Copyright Office.
* Once a reasonable effort has been conducted, a user may use an orphan
work without limitation unless or until an owner comes forward.  If an
owner does come forward, new use of that work would require permission.
  Previous use could continue.
* Provisions relating to pursuing legal action are included as are
limitations on remedies and liability.

We still welcome any information concerning the experiences that users
and institutions have faced when seeking permission to use a copyrighted
work.  The more information that can be provided concerning difficulties
you have faced in seeking permissions will bolster our arguments about
the need to change the law.

Please send any information that you may have to Carrie Russell at
<crussell@xxxxxxxxxxx>.  Included below are questions that may help
frame your response. Thank you!

1) Can you provide specific examples of difficulties that you have faced
in identifying and locating copyright owners when seeking permission for
copyrighted works?  If possible, please include the type of work and its
intended use (e.g., photograph, book, article, film clip), the amount of
time taken for each search, and whether or not you were able to obtain
permission for use of the work.
2) How often is identifying and locating the copyright owner a problem?
3) Are difficulties often encountered even after the copyright owner is
identified? If so, please explain.

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