Orphan Works and Mass Digitization; Request for Additional Comments and Announcement of Public Roundtables, 7706-7711 [2014-02830]

Download as PDF 7706 Federal Register / Vol. 79, No. 27 / Monday, February 10, 2014 / Notices electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. Agency: DOL–OS. Title of Collection: National Longitudinal Study of Unemployment Insurance Recipients. OMB ICR Reference Number: 121308– 0190–001. Affected Public: Individuals or Households. Total Estimated Number of Respondents: 2,178. Total Estimated Number of Responses: 5,695. Total Estimated Annual Time Burden: 2,373 hours. Total Estimated Annual Other Costs Burden: $0. Dated: February 4, 2014. Michel Smyth, Departmental Clearance Officer. [FR Doc. 2014–02821 Filed 2–7–14; 8:45 a.m.] BILLING CODE 4510–23–P LEGAL SERVICES CORPORATION Notice and Request for Comments: LSC Merger of Service Areas in Louisiana Legal Services Corporation. Notice and Request for Comments—LSC merger of the two service areas covering the south-central and southeastern region of Louisiana. AGENCY: ACTION: The Legal Services Corporation (LSC) intends to merge the two service areas that cover the twelve counties of the south-central region of Louisiana (including Baton Rouge) and the ten counties of the southeastern region of the state (including New Orleans). Grants for these individual service areas have been awarded to Southeast Louisiana Legal Services Corporation (SLLSC) since 2011. For 2014, LSC awarded SLLSC three-year grants for these two service areas. LSC intends to merge the two service areas into one service area and to award one grant for the new combined service area. Doing so will harmonize the grant structure with the current delivery model. SUMMARY: All comments must be received on or before the close of business on March 12, 2014. ADDRESSES: Written comments may be submitted to LSC by email to competition@lsc.gov (this is the preferred option); by submitting a form online at http://www.lsc.gov/contact-us; by mail to Legal Services Corporation, mstockstill on DSK4VPTVN1PROD with NOTICES DATES: VerDate Mar<15>2010 19:25 Feb 07, 2014 Jkt 232001 3333 K Street NW., Third Floor, Washington, DC 20007, Attention: Reginald Haley; or by fax to 202–337– 6813. FOR FURTHER INFORMATION CONTACT: Reginald J. Haley, Office of Program Performance, Legal Services Corporation, 3333 K Street NW., Washington, DC 20007; or by email at haleyr@lsc.gov. The mission of LSC is to promote equal access to justice and to provide funding for high-quality civil legal assistance to low-income persons. Pursuant to its statutory authority, LSC designates service areas in U.S. states, territories, possessions, and the District of Columbia for which it provides grants to legal aid programs to provide free civil legal services. The LSC Act charges LSC with ensuring that ‘‘grants and contracts are made so as to provide the most economical and effective delivery of legal assistance to persons in both urban and rural areas.’’ 42 U.S.C. 2996f(a)(3). Merging the two Louisiana service areas will provide an economical and effective delivery approach for serving the legal needs of the low-income population and will harmonize the grant structure with the current delivery model. LSC provides grants through a competitive bidding process, which is regulated by 45 CFR Part 1634. In 2013, LSC implemented a competitive grants process for 2014 calendar year funding that included, inter alia, these Louisiana service areas. For 2014, LSC awarded SLLSC three-year grants for both of these service areas. LSC intends to merge the two service areas into a single service area and merge the 2014 grants for those service areas into a single grant beginning March 21, 2014. LSC invites public comment on this decision. Interested parties may submit comments to LSC no later than the close of business on March 12, 2014. More information about LSC can be found at: http://www.lsc.gov. SUPPLEMENTARY INFORMATION: Dated: February 5, 2014. Atitaya C. Rok, Staff Attorney. [FR Doc. 2014–02810 Filed 2–7–14; 8:45 am] BILLING CODE 7050–01–P PO 00000 Frm 00077 Fmt 4703 Sfmt 4703 LIBRARY OF CONGRESS U.S. Copyright Office [Docket No. 2012–12] Orphan Works and Mass Digitization; Request for Additional Comments and Announcement of Public Roundtables U.S. Copyright Office, Library of Congress. ACTION: Notice of Inquiry. AGENCY: The U.S. Copyright Office will host public roundtable discussions and seeks further comments on potential legislative solutions for orphan works and mass digitization under U.S. copyright law. The meetings and comments will provide an opportunity for interested parties to address new legal developments as well as issues raised by comments provided in response to the Office’s previous Notice of Inquiry. DATES: The public roundtables will be held on March 10, 2014 from 9:00 a.m. to 5:00 p.m. EST and March 11, 2014 from 9:00 a.m. to 5:00 p.m. EST. Written comments must be received no later than 5 p.m. EST on April 14, 2014. ADDRESSES: SUMMARY: Public Roundtables The public roundtables will take place in the Copyright Office Hearing Room, LM—408 of the Madison Building of the Library of Congress, 101 Independence Avenue SE., Washington, DC 20559. The Copyright Office strongly prefers that requests for participation be submitted electronically. The agendas and the process for submitting requests to participate in or observe one of these meetings are included on the Copyright Office Web site. If electronic registration is not feasible, please contact the Office at 202–707–1027. Public Comments Members of the public will have the opportunity to submit written comments following the public roundtable meetings. The written comments may address topics listed in this Notice of Inquiry as well as respond to any issues raised during the public meetings. All written comments should be submitted electronically. A comment form will be posted on the Copyright Office Web site at http://copyright.gov/ orphan/ no later than March 12, 2014. The Web site interface requires commenting parties to complete a form specifying name and organization, as applicable, and to upload comments as an attachment via a browser button. To meet accessibility standards, commenting parties must upload E:\FR\FM\10FEN1.SGM 10FEN1 Federal Register / Vol. 79, No. 27 / Monday, February 10, 2014 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES comments in a single file not to exceed six megabytes (MB) in one of the following formats: the Adobe Portable Document File (PDF) format that contains searchable, accessible text (not an image); Microsoft Word; WordPerfect; Rich Text Format (RTF); or ASCII text file (not a scanned document). The form and face of the comments must include both the name of the submitter and organization. The Office will post the comments publicly on the Office’s Web site exactly as they are received, along with names and organizations. If electronic submission of comments is not feasible, please contact the Office at 202–707–1027 for special instructions. FOR FURTHER INFORMATION CONTACT: Karyn Temple Claggett, Associate Register of Copyrights and Director of Policy and International Affairs, by telephone at 202–707–1027 or by email at kacl@loc.gov, or Catherine Rowland, Senior Counsel for Policy and International Affairs, by telephone at 202–707–1027 or by email at crowland@ loc.gov. SUPPLEMENTARY INFORMATION: Background: The Copyright Office is reviewing the issue of orphan works 1 under U.S. copyright law in continuation of its previous work on the subject and to advise Congress on potential legislative solutions. As part of its current review, the Office is considering recent developments in the legal and business environments regarding orphan works in the context of: (1) occasional or isolated uses of orphan works; and (2) mass digitization. In October 2011, the Office published a Preliminary Analysis and Discussion document (the ‘‘Analysis’’) that examined various legal issues involved in mass digitization projects.2 Subsequently, to assist with further review of the issue, the Office published a general Notice of Inquiry (the ‘‘Notice’’) seeking comments from the public on both mass digitization and isolated uses of orphan works.3 The Notice provided background on the Office’s previous review of this issue in its January 2006 Report on Orphan 1 ‘‘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.’’ Copyright Office Notice of Inquiry, Orphan Works and Mass Digitization, 77 FR 64555 (Oct. 22, 2012), available at http://www.copyright.gov/fedreg/2012/ 77fr64555.pdf. 2 U.S. Copyright Office, Legal Issues in Mass Digitization: A Preliminary Analysis and Discussion Document (2011), available at http:// www.copyright.gov/docs/massdigitization/ USCOMassDigitization_October2011.pdf. 3 Notice, 77 FR 64555–61. VerDate Mar<15>2010 19:25 Feb 07, 2014 Jkt 232001 Works (the ‘‘2006 Report’’),4 legislation proposed in 2006 and 2008,5 the Google Books Search and Hathitrust litigation,6 the role of the Office and private registries in alleviating the orphan works problem, legal issues in mass digitization, and recent international developments. In 2013, the Office received ninety-one initial comments from various interested parties and eighty-nine reply comments. The Notice, comments, and background materials are available at the Copyright Office Web site. The Office now announces public roundtables and seeks further public comments to discuss new legal developments as well as specific issues raised by earlier public comments as it considers potential legislative recommendations. Subjects of Comments and Public Roundtables: After reviewing the comments in response to the Copyright Office’s prior Notice, the Office is interested in holding public roundtables to further explore the issues surrounding orphan works and mass digitization. The Office will hold the public roundtable discussions over the course of two days. The first day will cover the following topics: (1) The need for legislation in light of recent legal and technological developments; (2) defining a good faith ‘‘reasonably diligent search’’ standard; (3) the role of private and public registries; (4) the types of works subject to any orphan works legislation, including issues related specifically to photographs; and (5) the types of users and uses subject to any orphan works legislation. The second day will include discussions of the following topics: (1) Remedies and procedures regarding orphan works; (2) mass digitization, generally; (3) extended collective licensing and mass digitization; and (4) the structure and mechanics of a possible extended collective licensing system in the United States. Each of these topics is explained in more detail below. Additionally, the Office invites further written comments regarding the subjects briefly identified above and further explained below, including from parties who did not previously address those subjects, or those who wish to amplify or clarify their earlier comments or respond to issues raised in the public 4 U.S. Copyright Office, Report on Orphan Works (2006), available at http://www.copyright.gov/ orphan/orphan-report-full.pdf. 5 Shawn Bentley Orphan Works Act of 2008, S. 2913, 110th Cong. (2008); Orphan Works Act of 2008, H.R. 5889, 110th Cong. (2008); Orphan Works Act of 2006, H.R. 5439, 109th Cong. (2006). 6 Authors Guild, Inc. v. HathiTrust, 902 F. Supp. 2d 445 (S.D.N.Y. 2012); Authors Guild, Inc. v. Google Inc., 770 F. Supp. 2d 666 (S.D.N.Y. 2011) (‘‘Google I’’). PO 00000 Frm 00078 Fmt 4703 Sfmt 4703 7707 roundtable meetings. A party choosing to respond to this Notice of Inquiry need not address every subject below, but the Office requests that responding parties clearly identify and separately address each subject for which a response is submitted. Commenters may address any or all of the issues identified below, as well as provide information on other aspects of these issues that are relevant to developing potential legislative solutions to the issues of orphan works and mass digitization. Day One Session 1: The Need for Legislation in Light of Recent Legal and Technological Developments The Office’s 2006 Report concluded that the orphan works problem was pervasive and provided draft legislative language for congressional consideration. Though several bills were introduced in 2006 and 2008,7 none of them ultimately were enacted. Since then, high-profile litigation in the United States brought the issue of orphan works back to the fore. In rejecting the proposed settlement agreement in The Authors Guild, Inc. v. Google Inc. in 2011, the Southern District Court of New York explicitly noted that it is Congress, and not the courts, who should decide how to resolve the issue of orphan works.8 Recently, the same district court granted summary judgment to Google on copyright infringement claims relating to the Google Books Library Project, concluding that ‘‘Google Books provides significant public benefits,’’ and that its book scanning project constitutes fair use under U.S. copyright law.9 While the court’s ruling did find the Google Books mass digitization project to be fair use, it neither indicated how broadly the opinion could be used to justify other types of mass digitization projects nor did it explicitly address the issue of orphan works. Similarly, on October 10, 2012, the Southern District of New York also 7 See supra note 5. I, 770 F. Supp. 2d at 678. ‘‘Google Books’’ is the larger project that includes the Google Books Library Project and the Google Books Partner Project (formerly ‘‘Google Print’’). Google commenced its book scanning project (then referred to as ‘‘Google Print Library Project’’) in 2004. In September 2005, the Authors Guild of America and five publisher members of the Association of American Publishers (‘‘AAP’’) sued Google for copyright infringement. The Google Books Partner Project was created when Google and the publishers announced a settlement agreement in October 2012. References to ‘‘Google Books’’ or the ‘‘Google Books case’’ relate to litigation surrounding the Library Project. 9 Authors Guild, Inc. v. Google Inc., Case No. 05 Civ. 8136 (DC), 2013 WL 6017130, *26 (S.D.N.Y Nov. 14, 2013) (‘‘Google II’’). 8 Google E:\FR\FM\10FEN1.SGM 10FEN1 7708 Federal Register / Vol. 79, No. 27 / Monday, February 10, 2014 / Notices ruled that the digitization project undertaken by the HathiTrust Digital Library (‘‘HathiTrust’’) and its five university partners was largely transformative and protected by fair use.10 The court, however, did not consider the copyright claims relating to the HathiTrust Orphan Works Project, finding that the issue was not ripe for adjudication because the defendants had suspended the project shortly after the complaint was filed.11 In addition to these legal developments, technology has significantly progressed since Congress last considered the orphan works issue. Since 2008, technological developments have arguably mitigated the orphan works problem via vastly improved search tools and database technology. Improved search engine technology allows users to locate rights holders (and vice versa) via image, sound, or video searches. Improved databases, such as the PLUS Registry,12 and database interoperability allow copyright rights holders to better publicize ownership information. Yet, many argue that these technologies are not being effectively utilized in the context of orphan works and a legislative solution remains necessary. In light of recent legal and technological developments, the Office is interested in discussing the current need for legislation to address the issues of orphan works and mass digitization. Specifically, the public roundtable meetings will allow participants to discuss whether recent legal developments have obviated the need for legislation, or whether new legislation would resolve or alleviate the concerns identified in the comments. Can the orphan works problem be resolved under existing exceptions and limitations contained in the current Copyright Act, such as fair use? Should this determination hinge on the type of use or user making use of the work? If legislation is deemed necessary, how 10 HathiTrust, 902 F. Supp. 2d 445. at 455–56. 12 The PLUS Registry (the ‘‘Registry’’) is an online database created and operated by PLUS Coalition, Inc., an international group of communities ‘‘dedicated to creating, using, distributing and preserving images.’’ Users may search the Registry to find rights and descriptive information (‘‘metadata’’) for any image, and to find current contact information for related creators, rights holders and institutions. Owners may register their images and image licenses to allow authorized users to find rights and descriptive metadata using a specific ID or image recognition. Plus Coalition, Inc., ‘‘About,’’https:// www.plusregistry.org/cgi-bin/WebObjects/ PlusDB.woa/1/wo/kl6vPj6TeDu1MqoK7ajbug/ 0.107.27. The role of private and public registries is further discussed in Session 3, below. mstockstill on DSK4VPTVN1PROD with NOTICES 11 Id. VerDate Mar<15>2010 19:25 Feb 07, 2014 Jkt 232001 should it reflect or acknowledge recent developments in fair use law, if at all? Additionally, the Office would like to discuss the impact of technological advancements. For example, have improved search tools and database technologies mitigated the orphan works problem, or are these technologies not being effectively utilized in the context of orphan works? Session 2: Defining the Good Faith ‘‘Reasonably Diligent Search’’ Standard In its 2006 Report, the Copyright Office recommended that Congress amend the Copyright Act to limit the remedies available against good faith users of orphan works after the user performed a generally ‘‘reasonably diligent search’’ to locate the owner of that work. The 2008 bills set forth certain baseline requirements such as searching the Office’s online records, and would have required users to consult best practices applicable to the work at issue. Both copyright owners and users would have participated in developing these best practices, which the Register of Copyrights would have coordinated. The Office is interested in discussing how best to define a good faith, reasonably diligent search in light of changes in the legal and technological environment since 2008, and whether improvements can be made to the standard set forth in the 2008 bills. What are the relative advantages or risks of flexible versus rigidly-defined search standards? Additionally, should the Office participate in developing search criteria or evaluating searches, and should regulations set forth specific search criteria? Moreover, what should be the role of community-developed best practices documents that may guide particular groups of users making particular types of uses, and who should develop these ‘‘best practices’’ documents? Finally, what role should the Office play in developing, monitoring, or certifying search criteria? Session 3: The Role of Private and Public Registries One question regarding orphan works is the role public and private registries might play in any orphan works solution. The most obvious of these registries, the Copyright Office’s own registration and recordation system, provides a wealth of copyright information but has limitations based on both technological requirements and the fact that registration and recordation is not mandatory in the United States. There are other registries that have ownership information, and there has been some suggestion that the Office PO 00000 Frm 00079 Fmt 4703 Sfmt 4703 should investigate enhancing interoperability between the Office system and private rights registries.13 The Office would like to discuss the role registration and recordation may play in helping to more effectively mitigate the orphan works problem. For example, in the context of orphan works, how could the Office facilitate and incentivize owners to register their works and keep their ownership and contact information current? Should failure to register with the Office affect the orphan status of a work? How could any such incentives be reconciled with the United States’ obligations under the Berne Convention and other international instruments? Additionally, the Office is interested in learning more about the appropriate role of third party registries (commercial and noncommercial). For example, what could be the Office’s role in overseeing or certifying these third party registries? Would it be helpful for the Office to establish a registry requiring users to register their use of, or intent to use, orphan works similar to that envisioned in the Orphan Works Act of 2008? 14 Does the recently-passed UK orphan works legislation, which envisions a key role for a web portal connecting multiple private and public Web sites and databases, present an attractive model for utilizing and organizing these registries in the United States? Session 4: Types of Works Subject to Orphan Works Legislation, Including Issues Related Specifically to Photographs As described in the Office’s previous Notice and many of the responding comments, orphan works remain a pervasive issue in copyright law. While the issue cuts across all creative sectors, the unique challenges posed by photographs have long been an obstacle to developing an effective orphan works solution. Photographs and other works of visual art may lack or may more easily become divorced from ownership information, especially in the age of social media that has largely transpired since Congress considered the 2008 bills. This lack of identifying 13 As mentioned in the Notice, the Office has begun digitizing its historic records and is initiating upgrades to its registration and recordation systems. These projects will facilitate public access to, and thus improve users’ ability to investigate, the copyright status of works, including the identification and location of copyright owners. The upgrades to the registration and recordation systems also are meant to facilitate the effective registration of works and recordation of documents related to registered works, helping to ensure that the record and contact information on file with the Office remains accurate. Notice, 77 FR 64558. 14 H.R. 5889, 110th Cong. sec. 2(a), § 514(b)(3) (2008). E:\FR\FM\10FEN1.SGM 10FEN1 Federal Register / Vol. 79, No. 27 / Monday, February 10, 2014 / Notices information often prevents users from locating or even initiating a search for orphaned photographs’ rights holders. The 2008 bills included a number of provisions specifically aimed at resolving some of the issues specific to photographs. In light of the peculiar position of photographs, it is important to consider how any orphan works solution might address these specific works, either by creating specific rules or excluding them altogether. Excluding photographs would not be a novel solution; the European Union recently approved an orphan works directive (the ‘‘Directive’’) that provides an exception for noncommercial public interest users making noncommercial public interest uses of orphan works, while providing a general exclusion of photographs from the scheme.15 The Office is interested in discussing how to address the problems presented by certain types of works, including specifically photographic and visual arts orphan works. Should an orphan works solution exclude any particular type of work or should it include all copyrighted works? Would the exclusion of certain types of works substantially undermine the effectiveness of any orphan works solution? If all types of works are included, what (if any) special provisions are required to ensure that all copyright owners, such as photographers, are treated equitably within the legislative framework? Do recent developments such as the creation of voluntary registries, like the PLUS Registry,16 mitigate any of the earlier concerns regarding the treatment of photographs? mstockstill on DSK4VPTVN1PROD with NOTICES Session 5: Types of users and uses subject to orphan works legislation The Copyright Office’s previous orphan works review did not differentiate between commercial and noncommercial uses and users of orphan works. Since then, however, there has been a debate regarding whether an orphan works solution should take into account the user’s status as either a commercial or noncommercial entity. For example, the 15 Directive 2012/28/EU, of the European Parliament and of the Council of 25 October 2012 on Certain Permitted Uses of Orphan Works, available at http://register.consilium.europa.eu/ doc/srv?l=EN&t=PDF&gc=true&sc=false& f=PE%2036%202012%20REV%202. Note, however, that photographs embedded in other, covered, works (e.g., photographs contained in books) are included within this scheme. Id. at art. 1(4). 16 See Plus Coalition, Inc., supra note 12. Both the 2008 House and Senate bills would have delayed implementation until after such a registry was developed. VerDate Mar<15>2010 19:25 Feb 07, 2014 Jkt 232001 Directive provides an exception for noncommercial public interest users making noncommercial public interest uses of orphan works.17 Any solution that excludes commercial users and uses, however, may arguably provide an incomplete solution. Some have argued that the policy motivations behind any orphan works legislation logically should extend to commercial uses that may promote the underlying goals of the Copyright Act. The United Kingdom’s recently adopted orphan works legislation does not differentiate between commercial and noncommercial users or uses. The Office thus is interested in learning more about whether an orphan works solution should encompass both commercial and noncommercial uses. Should orphan works legislation apply equally to commercial and noncommercial uses and users? If not, how should specific types of uses and users be treated within the legislative framework? Should orphan works legislation be limited only to uses by noncommercial entities with a public service mission? Should these entities be permitted to use orphan works only for limited purposes such as preservation, or should they be able to broadly use orphan works to provide access to the public? Should commercial entities be able to make commercial use of orphan works? What are the relative advantages or disadvantages of allowing such use? Day Two Session 1: Remedies and Procedures Regarding Orphan Works The Office’s 2006 Report did not suggest creation of an exception to copyright for use of orphan works, but instead recommended that Congress limit the remedies that the copyright owner could seek against good faith users of orphan works to injunctive relief and ‘‘reasonable compensation’’ for the use of the work. The Office also recommended a ‘‘take-down’’ option for certain noncommercial users engaged in noncommercial activities, which was incorporated in the proposed 2008 legislation. In addition to the take-down provision, the legislation also would have (1) limited remedies to good faith users of orphan works having performed a reasonably diligent search, (2) been applicable on a case-by-case basis, and (3) permitted rights holders to reasonable compensation, but not statutory damages or attorneys’ fees. The Senate bill would have allowed owners to reclaim their works by serving a 17 See PO 00000 Directive, supra note 15, at art. 6(2). Frm 00080 Fmt 4703 Sfmt 4703 7709 ‘‘Notice of Claim of Infringement,’’ requiring the user to cease the infringement and negotiate in good faith with the rights holder.18 The appropriate structure and scope of remedies continues to be a significant issue of concern for both copyright owners and potential users of orphan works. For example, the threat and unpredictable nature of statutory damages, the need for predictability and reasonableness in assessing damages, and the rights available to creators of derivative works based on orphan works are all issues that warrant further discussion. The Office is interested in discussing remedies and procedures in the context of orphan works. What remedies should be available where orphan works rights holders emerge after a third party has already begun to use an orphaned work? What rights should be available for creators of derivative works based on orphan works? What procedures should be put in place where these situations arise? Does the limitation on liability model still make sense in the current legal environment? Should orphan works legislation instead be re-framed as an exception to copyright as it is in an increasing number of foreign jurisdictions? Session 2: Mass Digitization, Generally The Office’s 2006 Report and the 2008 proposed legislation did not consider the issue of mass digitization in detail. Although mass digitization was ongoing in 2008, the practice has since become much more prevalent. Thus, it is important to understand how mass digitization fits into an orphan works solution. Because many of the comments submitted in response to the Notice indicated that the issue of mass digitization should be treated separately from the issue of orphan works, it also is important to understand whether mass digitization fits into an orphan works solution. The Copyright Office would like to discuss the intersection of mass digitization and orphan works at the public roundtable meetings. As a preliminary matter, the Office is interested in discussing what types of digitization projects should be covered by any legislative proposal, including the scope of activities that can be accurately described as ‘‘mass digitization.’’ Additionally, it is important to review the relative risks and benefits of mass digitization projects. The Office would like to discuss the types of entities that might 18 S. 2913, 110th Cong. sec. 2(a) § 514(c)(1)(B), 514(b)(1)(A) (2008). E:\FR\FM\10FEN1.SGM 10FEN1 7710 Federal Register / Vol. 79, No. 27 / Monday, February 10, 2014 / Notices be able to engage in such activities under any legislative proposal, and the types or categories of works that should be covered. Moreover, under what circumstances should mass digitization projects proceed and how may digitized materials be used? How might any mass digitization solution differ from that of a general orphan works solution? Would potential solutions developed in the context of mass digitization ameliorate the issue of orphan works? How might these potential solutions interact? mstockstill on DSK4VPTVN1PROD with NOTICES Session 3: Extended Collective Licensing and Mass Digitization Several foreign countries have laws that address mass digitization in different ways. For example, recentlypassed legislation in the United Kingdom creates a bifurcated approach allowing certain types of individual uses of orphan works and mass digitization.19 There, individual or occasional users of orphan works may apply for a non-exclusive license from a centralized government or government-sanctioned private agency on payment of a license fee held in escrow should rights holders reemerge.20 Users also must perform a diligent search for the rights holder, which must be verified by the authorizing body before a license will be issued.21 Cultural institutions engaging in mass digitization, on the other hand, may digitize works (including orphan works) in their existing collections through an extended collective licensing regime.22 The licenses granted are not exclusive and all rights holders have the right to opt out of any license.23 Hungary has adopted a similar two-tier orphan works solution.24 Several Nordic 19 See Enterprise and Regulatory Reform Act, 2013, c. 24, § 77, available at http:// www.legislation.gov.uk/ukpga/2013/24/section/77. 20 Id. 21 Id. 22 Id. In extended collective licensing models, representatives of copyright owners and representatives of users negotiate terms that are binding on all members of the group by operation of law (e.g., all textbook publishers), unless a particular copyright owner opts out. Extended collective licensing regimes authorize the grant of broad licenses to make specified uses of incopyright works for which it would be unduly expensive to clear rights on a work-by-work basis (e.g., mass digitization of in-copyright works, photocopying in-copyright articles in library settings). The government or a trusted designee typically administers payments. It is not quite compulsory licensing in that the parties (rather than the government) negotiate the rates, but it nevertheless requires a legislative framework and often involves some degree of government oversight. See Notice, 77 FR 64559. 23 Enterprise and Regulatory Reform Act 2013 at Section 77. 24 100/2009 (V. 8) Korm. rendelet az arva mu ´ ¨ ´ ´ ´ ´ ´ ´ egyes felhasznalasainak engedelyezesere vonatkozo ´ ´ ´ reszletes szabalyokrol (Government Regulation on VerDate Mar<15>2010 20:07 Feb 07, 2014 Jkt 232001 countries also have adopted extended collective licensing regimes for limited types of works and uses in the context of mass digitization.25 The Office is interesting in reviewing the option of extended collective licensing for purposes of mass digitization in detail. For example, the Office is interested in discussing whether the United States should look abroad to foreign extended collective licensing approaches for ideas on domestic action on the issue of mass digitization. If so, which approach or components of any particular approach present attractive options for a potential U.S. course of action? Should such a system include both commercial and noncommercial uses, or be limited to noncommercial entities? How do extended collective licensing systems work in practice in the countries where they have been adopted? Are there statistics or any longitudinal data regarding the success of extended collective licensing regimes, particularly ` vis-a-vis orphan works and mass digitization, around the world? Further, would the U.S. political, legal, and market structures, which can be quite different from foreign counterparts, support an extended collective licensing-type solution? Session 4: The Structure and Mechanics of a Possible Extended Collective Licensing System in the United States Extended collective licensing systems exist where representatives of copyright owners and users negotiate terms that are binding on both members and similarly situated non-members of the group by operation of law, unless an interested copyright rights holder elects to opt out. Collective management organizations function by establishing, collecting, and distributing these license fees. These organizations typically are sanctioned or overseen by the government. Where these organizations collect licensing fees relating to orphan works, they typically hold these fees until the owner emerges to collect the fee or for a statutorily set period of time. In this way, extended collective licensing may present an option for resolving many of the issues inherent in mass digitization projects, especially as they relate to the incidental digitization of orphan works contained in these digitized collections. the Detailed Rules Related to the Licensing of Certain Use of Orphan Works), arts. 2(1), 2(2), 3 (Hung.), available at http://www.hipo.gov.hu/ English/jogforras/100_2009.pdf. 25 See, e.g., Consolidated Act on Copyright 2010, No. 202, Art. 50–51 (2010) (Denmark); see also Copyright Act, No. 404, §§ 13–14 (2010) (Finland). PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 While some other countries have embraced extended collective licensing, the United States currently does not have the legal framework for such a system. Nevertheless, there has been some discussion that extended collective licensing might be helpful in a mass digitization scenario. It is unclear, however, how extended collective licensing could integrate with the current U.S. legal infrastructure to streamline the licensing process, or whether it could possibly upset existing and well-functioning markets for certain copyright-protected works. Moreover, the mechanical operation of such a system is unclear; for example, questions remain regarding procedures whereby copyright rights holders may ‘‘opt out’’ of any extended collective licensing regime. The Office is interested in discussing specific details of an appropriate extended collective licensing system in the United States for mass digitization purposes. How might an extended collective licensing regime be structured in the United States? Could an extended collective licensing system be compatible with U.S. copyright laws, legal norms, and industry practices? How much direct oversight should the Office or any other governmental entity have over the establishment, authorization, and/or operation of collective management organizations? Are any existing collective management organizations in the United States capable of administering an extended collective licensing regime for mass digitization? If new collective management organizations are created, should they be structured as government entities, nonprofit entities licensed and/or funded by the government, or commercial entities licensed and/or funded privately or by the government? Additionally, the Office recognizes that the opt-out and orphan works issues inherent in mass digitization projects are ripe for further discussion. For example, should rights holders be permitted to opt out of any extended collective licensing system at any time? How would rights holders’ ability to opt out affect licensees who may have made significant investments in the use of licensed works? How should orphan works ‘‘incidentally’’ included in a mass digitization project be handled? Should the collective management organization be responsible for attempting to locate all rights holders and, if so, should a ‘‘reasonably diligent search’’ standard be applied to the organization? How should license fees be calculated and how should remuneration of authors and authors’ groups be handled? What E:\FR\FM\10FEN1.SGM 10FEN1 Federal Register / Vol. 79, No. 27 / Monday, February 10, 2014 / Notices types of entities should be able to utilize an extended collective licensing system for mass digitization? NUCLEAR REGULATORY COMMISSION Dated: February 5, 2014. Karyn A. Temple Claggett, Associate Register of Copyrights and Director of Policy and International Affairs. [Docket No. NRC–2013–0239] [FR Doc. 2014–02830 Filed 2–7–14; 8:45 am] BILLING CODE 1410–30–P Agency Information Collection Activities: Submission for the Office of Management and Budget (OMB) Review; Comment Request NATIONAL ARCHIVES AND RECORDS ADMINISTRATION Nuclear Regulatory Commission. ACTION: Notice of the OMB review of information collection and solicitation of public comment. Information Security Oversight Office SUMMARY: AGENCY: [NARA–2014–015] National Industrial Security Program Policy Advisory Committee (NISPPAC) National Archives and Records Administration (NARA). AGENCY: Notice of Advisory Committee Meeting. ACTION: In accordance with the Federal Advisory Committee Act (5 U.S.C. app 2) and implementing regulation 41 CFR 101–6, NARA announces an upcoming meeting of the National Industrial Security Program Policy Advisory Committee (NISPPAC). SUMMARY: The meeting will be held on March 19, 2014, from 10:00 a.m. to 12:00 p.m. DATES: National Archives and Records Administration; 700 Pennsylvania Avenue NW., Archivist’s Reception Room, Room 105; Washington, DC 20408. ADDRESSES: FOR FURTHER INFORMATION CONTACT: David O. Best, Senior Program Analyst, ISOO, by mail at the above address, telephone (202) 357–5123, or email david.best@nara.gov. Contact ISOO at ISOO@nara.gov and the NISPPAC at NISPPAC@nara.gov. This meeting will be open to the public. However, due to space limitations and access procedures, the name and telephone number of individuals planning to attend must be submitted to the Information Security Oversight Office (ISOO) no later than Friday, March 14, 2014. ISOO will provide additional instructions for gaining access to the location of the meeting. mstockstill on DSK4VPTVN1PROD with NOTICES SUPPLEMENTARY INFORMATION: Dated: February 5, 2014. Patrice Little Murray, Acting Committee Management Officer. [FR Doc. 2014–02816 Filed 2–7–14; 8:45 am] BILLING CODE 7515–01–P VerDate Mar<15>2010 19:25 Feb 07, 2014 Jkt 232001 The U.S. Nuclear Regulatory Commission (NRC) has recently submitted to OMB for review the following proposal for the collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The NRC published a Federal Register notice with a 60-day comment period on this information collection on November 8, 2013 (78 FR 67204). 1. Type of submission, new, revision, or extension: Extension. 2. The title of the information collection: 10 CFR part 70, ‘‘Domestic Licensing of Special Nuclear Material.’’ 3. Current OMB approval number: 3150–0009. 4. The form number if applicable: Not applicable. 5. How often the collection is required: On occasion. Required reports are collected and evaluated on a continuing basis as events occur. Applications for new licenses and amendments may be submitted at any time. Generally, renewal applications are submitted every 10 years and for major fuel cycle facilities updates of the safety demonstration section are submitted every 2 years. Nuclear material control and accounting information is submitted in accordance with specified instructions. 6. Who will be required or asked to report: Applicants for and holders of specific NRC licenses to receive title to, own, acquire, deliver, receive, possess, use, or initially transfer special nuclear material. 7. An estimate of the number of annual responses: 1,620 responses. 8. The estimated number of annual respondents: 606. 9. An estimate of the total number of hours needed annually to complete the requirement or request: 89.240.6 hours (81,791.1 hours reporting + 7379.4 PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 7711 hours recordkeeping + 70.1 hours third party disclosure). 10. Abstract: Part 70 of Title 10 of the Code of Federal Regulations (10 CFR), establishes requirements for licenses to own, acquire, receive, possess, use, and transfer special nuclear material. The information in the applications, reports, and records is used by NRC to make licensing and other regulatory determinations concerning the use of special nuclear material. The public may examine and have copied for a fee publicly-available documents, including the final supporting statement, at the NRC’s Public Document Room, Room O–1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. The OMB clearance requests are available at the NRC’s Web site: http://www.nrc.gov/ public-involve/doc-comment/omb/. The document will be available on the NRC’s home page site for 60 days after the signature date of this notice. Comments and questions should be directed to the OMB reviewer listed below by March 12, 2014. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date. Danielle Y. Jones, Desk Officer, Office of Information and Regulatory Affairs (3150–0009), NEOB–10202, Office of Management and Budget, Washington, DC 20503. Comments can also be emailed to Danielle_Y_Jones@omb.eop.gov or submitted by telephone at 202–395– 1741. The Acting NRC Clearance Officer is Kristen Benney, telephone: 301–415– 6355. Dated at Rockville, Maryland, this 4th day of February, 2014. For the Nuclear Regulatory Commission. Kristen Benney, Acting NRC Clearance Officer, Office of Information Services. [FR Doc. 2014–02748 Filed 2–7–14; 8:45 am] BILLING CODE 7590–01–P NUCLEAR REGULATORY COMMISSION [NRC–2014–0001] Sunshine Act Meeting Notice Weeks of February 10, 17, 24, March 3, 10, 17, 2014. PLACE: Commissioners’ Conference Room, 11555 Rockville Pike, Rockville, Maryland. STATUS: Public and Closed. DATE: E:\FR\FM\10FEN1.SGM 10FEN1

Agencies

[Federal Register Volume 79, Number 27 (Monday, February 10, 2014)]
[Notices]
[Pages 7706-7711]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-02830]


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LIBRARY OF CONGRESS

U.S. Copyright Office

[Docket No. 2012-12]


Orphan Works and Mass Digitization; Request for Additional 
Comments and Announcement of Public Roundtables

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Notice of Inquiry.

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SUMMARY: The U.S. Copyright Office will host public roundtable 
discussions and seeks further comments on potential legislative 
solutions for orphan works and mass digitization under U.S. copyright 
law. The meetings and comments will provide an opportunity for 
interested parties to address new legal developments as well as issues 
raised by comments provided in response to the Office's previous Notice 
of Inquiry.

DATES: The public roundtables will be held on March 10, 2014 from 9:00 
a.m. to 5:00 p.m. EST and March 11, 2014 from 9:00 a.m. to 5:00 p.m. 
EST. Written comments must be received no later than 5 p.m. EST on 
April 14, 2014.
    ADDRESSES:

Public Roundtables

    The public roundtables will take place in the Copyright Office 
Hearing Room, LM--408 of the Madison Building of the Library of 
Congress, 101 Independence Avenue SE., Washington, DC 20559. The 
Copyright Office strongly prefers that requests for participation be 
submitted electronically. The agendas and the process for submitting 
requests to participate in or observe one of these meetings are 
included on the Copyright Office Web site. If electronic registration 
is not feasible, please contact the Office at 202-707-1027.

Public Comments

    Members of the public will have the opportunity to submit written 
comments following the public roundtable meetings. The written comments 
may address topics listed in this Notice of Inquiry as well as respond 
to any issues raised during the public meetings. All written comments 
should be submitted electronically. A comment form will be posted on 
the Copyright Office Web site at http://copyright.gov/orphan/ no later 
than March 12, 2014. The Web site interface requires commenting parties 
to complete a form specifying name and organization, as applicable, and 
to upload comments as an attachment via a browser button. To meet 
accessibility standards, commenting parties must upload

[[Page 7707]]

comments in a single file not to exceed six megabytes (MB) in one of 
the following formats: the Adobe Portable Document File (PDF) format 
that contains searchable, accessible text (not an image); Microsoft 
Word; WordPerfect; Rich Text Format (RTF); or ASCII text file (not a 
scanned document). The form and face of the comments must include both 
the name of the submitter and organization. The Office will post the 
comments publicly on the Office's Web site exactly as they are 
received, along with names and organizations. If electronic submission 
of comments is not feasible, please contact the Office at 202-707-1027 
for special instructions.

FOR FURTHER INFORMATION CONTACT: Karyn Temple Claggett, Associate 
Register of Copyrights and Director of Policy and International 
Affairs, by telephone at 202-707-1027 or by email at kacl@loc.gov, or 
Catherine Rowland, Senior Counsel for Policy and International Affairs, 
by telephone at 202-707-1027 or by email at crowland@loc.gov.

SUPPLEMENTARY INFORMATION: 
    Background: The Copyright Office is reviewing the issue of orphan 
works \1\ under U.S. copyright law in continuation of its previous work 
on the subject and to advise Congress on potential legislative 
solutions. As part of its current review, the Office is considering 
recent developments in the legal and business environments regarding 
orphan works in the context of: (1) occasional or isolated uses of 
orphan works; and (2) mass digitization. In October 2011, the Office 
published a Preliminary Analysis and Discussion document (the 
``Analysis'') that examined various legal issues involved in mass 
digitization projects.\2\
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    \1\ ``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.'' Copyright 
Office Notice of Inquiry, Orphan Works and Mass Digitization, 77 FR 
64555 (Oct. 22, 2012), available at http://www.copyright.gov/fedreg/2012/77fr64555.pdf.
    \2\ U.S. Copyright Office, Legal Issues in Mass Digitization: A 
Preliminary Analysis and Discussion Document (2011), available at 
http://www.copyright.gov/docs/massdigitization/USCOMassDigitization_October2011.pdf.
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    Subsequently, to assist with further review of the issue, the 
Office published a general Notice of Inquiry (the ``Notice'') seeking 
comments from the public on both mass digitization and isolated uses of 
orphan works.\3\ The Notice provided background on the Office's 
previous review of this issue in its January 2006 Report on Orphan 
Works (the ``2006 Report''),\4\ legislation proposed in 2006 and 
2008,\5\ the Google Books Search and Hathitrust litigation,\6\ the role 
of the Office and private registries in alleviating the orphan works 
problem, legal issues in mass digitization, and recent international 
developments. In 2013, the Office received ninety-one initial comments 
from various interested parties and eighty-nine reply comments. The 
Notice, comments, and background materials are available at the 
Copyright Office Web site. The Office now announces public roundtables 
and seeks further public comments to discuss new legal developments as 
well as specific issues raised by earlier public comments as it 
considers potential legislative recommendations.
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    \3\ Notice, 77 FR 64555-61.
    \4\ U.S. Copyright Office, Report on Orphan Works (2006), 
available at http://www.copyright.gov/orphan/orphan-report-full.pdf.
    \5\ Shawn Bentley Orphan Works Act of 2008, S. 2913, 110th Cong. 
(2008); Orphan Works Act of 2008, H.R. 5889, 110th Cong. (2008); 
Orphan Works Act of 2006, H.R. 5439, 109th Cong. (2006).
    \6\ Authors Guild, Inc. v. HathiTrust, 902 F. Supp. 2d 445 
(S.D.N.Y. 2012); Authors Guild, Inc. v. Google Inc., 770 F. Supp. 2d 
666 (S.D.N.Y. 2011) (``Google I'').
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    Subjects of Comments and Public Roundtables: After reviewing the 
comments in response to the Copyright Office's prior Notice, the Office 
is interested in holding public roundtables to further explore the 
issues surrounding orphan works and mass digitization. The Office will 
hold the public roundtable discussions over the course of two days. The 
first day will cover the following topics: (1) The need for legislation 
in light of recent legal and technological developments; (2) defining a 
good faith ``reasonably diligent search'' standard; (3) the role of 
private and public registries; (4) the types of works subject to any 
orphan works legislation, including issues related specifically to 
photographs; and (5) the types of users and uses subject to any orphan 
works legislation. The second day will include discussions of the 
following topics: (1) Remedies and procedures regarding orphan works; 
(2) mass digitization, generally; (3) extended collective licensing and 
mass digitization; and (4) the structure and mechanics of a possible 
extended collective licensing system in the United States. Each of 
these topics is explained in more detail below.
    Additionally, the Office invites further written comments regarding 
the subjects briefly identified above and further explained below, 
including from parties who did not previously address those subjects, 
or those who wish to amplify or clarify their earlier comments or 
respond to issues raised in the public roundtable meetings. A party 
choosing to respond to this Notice of Inquiry need not address every 
subject below, but the Office requests that responding parties clearly 
identify and separately address each subject for which a response is 
submitted. Commenters may address any or all of the issues identified 
below, as well as provide information on other aspects of these issues 
that are relevant to developing potential legislative solutions to the 
issues of orphan works and mass digitization.

Day One

Session 1: The Need for Legislation in Light of Recent Legal and 
Technological Developments
    The Office's 2006 Report concluded that the orphan works problem 
was pervasive and provided draft legislative language for congressional 
consideration. Though several bills were introduced in 2006 and 
2008,\7\ none of them ultimately were enacted. Since then, high-profile 
litigation in the United States brought the issue of orphan works back 
to the fore. In rejecting the proposed settlement agreement in The 
Authors Guild, Inc. v. Google Inc. in 2011, the Southern District Court 
of New York explicitly noted that it is Congress, and not the courts, 
who should decide how to resolve the issue of orphan works.\8\ 
Recently, the same district court granted summary judgment to Google on 
copyright infringement claims relating to the Google Books Library 
Project, concluding that ``Google Books provides significant public 
benefits,'' and that its book scanning project constitutes fair use 
under U.S. copyright law.\9\ While the court's ruling did find the 
Google Books mass digitization project to be fair use, it neither 
indicated how broadly the opinion could be used to justify other types 
of mass digitization projects nor did it explicitly address the issue 
of orphan works.
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    \7\ See supra note 5.
    \8\ Google I, 770 F. Supp. 2d at 678. ``Google Books'' is the 
larger project that includes the Google Books Library Project and 
the Google Books Partner Project (formerly ``Google Print''). Google 
commenced its book scanning project (then referred to as ``Google 
Print Library Project'') in 2004. In September 2005, the Authors 
Guild of America and five publisher members of the Association of 
American Publishers (``AAP'') sued Google for copyright 
infringement. The Google Books Partner Project was created when 
Google and the publishers announced a settlement agreement in 
October 2012. References to ``Google Books'' or the ``Google Books 
case'' relate to litigation surrounding the Library Project.
    \9\ Authors Guild, Inc. v. Google Inc., Case No. 05 Civ. 8136 
(DC), 2013 WL 6017130, *26 (S.D.N.Y Nov. 14, 2013) (``Google II'').
---------------------------------------------------------------------------

    Similarly, on October 10, 2012, the Southern District of New York 
also

[[Page 7708]]

ruled that the digitization project undertaken by the HathiTrust 
Digital Library (``HathiTrust'') and its five university partners was 
largely transformative and protected by fair use.\10\ The court, 
however, did not consider the copyright claims relating to the 
HathiTrust Orphan Works Project, finding that the issue was not ripe 
for adjudication because the defendants had suspended the project 
shortly after the complaint was filed.\11\
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    \10\ HathiTrust, 902 F. Supp. 2d 445.
    \11\ Id. at 455-56.
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    In addition to these legal developments, technology has 
significantly progressed since Congress last considered the orphan 
works issue. Since 2008, technological developments have arguably 
mitigated the orphan works problem via vastly improved search tools and 
database technology. Improved search engine technology allows users to 
locate rights holders (and vice versa) via image, sound, or video 
searches. Improved databases, such as the PLUS Registry,\12\ and 
database interoperability allow copyright rights holders to better 
publicize ownership information. Yet, many argue that these 
technologies are not being effectively utilized in the context of 
orphan works and a legislative solution remains necessary.
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    \12\ The PLUS Registry (the ``Registry'') is an online database 
created and operated by PLUS Coalition, Inc., an international group 
of communities ``dedicated to creating, using, distributing and 
preserving images.'' Users may search the Registry to find rights 
and descriptive information (``metadata'') for any image, and to
    find current contact information for related creators, rights 
holders and institutions. Owners may register their images and image 
licenses to allow authorized users to find rights and descriptive 
metadata using a specific ID or image recognition. Plus Coalition, 
Inc., ``About,''https://www.plusregistry.org/cgi-bin/WebObjects/PlusDB.woa/1/wo/kl6vPj6TeDu1MqoK7ajbug/0.107.27. The role of private 
and public registries is further discussed in Session 3, below.
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    In light of recent legal and technological developments, the Office 
is interested in discussing the current need for legislation to address 
the issues of orphan works and mass digitization. Specifically, the 
public roundtable meetings will allow participants to discuss whether 
recent legal developments have obviated the need for legislation, or 
whether new legislation would resolve or alleviate the concerns 
identified in the comments. Can the orphan works problem be resolved 
under existing exceptions and limitations contained in the current 
Copyright Act, such as fair use? Should this determination hinge on the 
type of use or user making use of the work? If legislation is deemed 
necessary, how should it reflect or acknowledge recent developments in 
fair use law, if at all?
    Additionally, the Office would like to discuss the impact of 
technological advancements. For example, have improved search tools and 
database technologies mitigated the orphan works problem, or are these 
technologies not being effectively utilized in the context of orphan 
works?
Session 2: Defining the Good Faith ``Reasonably Diligent Search'' 
Standard
    In its 2006 Report, the Copyright Office recommended that Congress 
amend the Copyright Act to limit the remedies available against good 
faith users of orphan works after the user performed a generally 
``reasonably diligent search'' to locate the owner of that work. The 
2008 bills set forth certain baseline requirements such as searching 
the Office's online records, and would have required users to consult 
best practices applicable to the work at issue. Both copyright owners 
and users would have participated in developing these best practices, 
which the Register of Copyrights would have coordinated.
    The Office is interested in discussing how best to define a good 
faith, reasonably diligent search in light of changes in the legal and 
technological environment since 2008, and whether improvements can be 
made to the standard set forth in the 2008 bills. What are the relative 
advantages or risks of flexible versus rigidly-defined search 
standards? Additionally, should the Office participate in developing 
search criteria or evaluating searches, and should regulations set 
forth specific search criteria? Moreover, what should be the role of 
community-developed best practices documents that may guide particular 
groups of users making particular types of uses, and who should develop 
these ``best practices'' documents? Finally, what role should the 
Office play in developing, monitoring, or certifying search criteria?
Session 3: The Role of Private and Public Registries
    One question regarding orphan works is the role public and private 
registries might play in any orphan works solution. The most obvious of 
these registries, the Copyright Office's own registration and 
recordation system, provides a wealth of copyright information but has 
limitations based on both technological requirements and the fact that 
registration and recordation is not mandatory in the United States. 
There are other registries that have ownership information, and there 
has been some suggestion that the Office should investigate enhancing 
interoperability between the Office system and private rights 
registries.\13\
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    \13\ As mentioned in the Notice, the Office has begun digitizing 
its historic records and is initiating upgrades to its registration 
and recordation systems. These projects will facilitate public 
access to, and thus improve users' ability to investigate, the 
copyright status of works, including the identification and location 
of copyright owners. The upgrades to the registration and 
recordation systems also are meant to facilitate the effective 
registration of works and recordation of documents related to 
registered works, helping to ensure that the record and contact 
information on file with the Office remains accurate. Notice, 77 FR 
64558.
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    The Office would like to discuss the role registration and 
recordation may play in helping to more effectively mitigate the orphan 
works problem. For example, in the context of orphan works, how could 
the Office facilitate and incentivize owners to register their works 
and keep their ownership and contact information current? Should 
failure to register with the Office affect the orphan status of a work? 
How could any such incentives be reconciled with the United States' 
obligations under the Berne Convention and other international 
instruments? Additionally, the Office is interested in learning more 
about the appropriate role of third party registries (commercial and 
noncommercial). For example, what could be the Office's role in 
overseeing or certifying these third party registries? Would it be 
helpful for the Office to establish a registry requiring users to 
register their use of, or intent to use, orphan works similar to that 
envisioned in the Orphan Works Act of 2008? \14\ Does the recently-
passed UK orphan works legislation, which envisions a key role for a 
web portal connecting multiple private and public Web sites and 
databases, present an attractive model for utilizing and organizing 
these registries in the United States?
---------------------------------------------------------------------------

    \14\ H.R. 5889, 110th Cong. sec. 2(a), Sec.  514(b)(3) (2008).
---------------------------------------------------------------------------

Session 4: Types of Works Subject to Orphan Works Legislation, 
Including Issues Related Specifically to Photographs
    As described in the Office's previous Notice and many of the 
responding comments, orphan works remain a pervasive issue in copyright 
law. While the issue cuts across all creative sectors, the unique 
challenges posed by photographs have long been an obstacle to 
developing an effective orphan works solution. Photographs and other 
works of visual art may lack or may more easily become divorced from 
ownership information, especially in the age of social media that has 
largely transpired since Congress considered the 2008 bills. This lack 
of identifying

[[Page 7709]]

information often prevents users from locating or even initiating a 
search for orphaned photographs' rights holders. The 2008 bills 
included a number of provisions specifically aimed at resolving some of 
the issues specific to photographs.
    In light of the peculiar position of photographs, it is important 
to consider how any orphan works solution might address these specific 
works, either by creating specific rules or excluding them altogether. 
Excluding photographs would not be a novel solution; the European Union 
recently approved an orphan works directive (the ``Directive'') that 
provides an exception for noncommercial public interest users making 
noncommercial public interest uses of orphan works, while providing a 
general exclusion of photographs from the scheme.\15\
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    \15\ Directive 2012/28/EU, of the European Parliament and of the 
Council of 25 October 2012 on Certain Permitted Uses of Orphan 
Works, available at http://register.consilium.europa.eu/doc/srv?l=EN&t=PDF&gc=true&sc=false&f=PE%2036%202012%20REV%202. Note, 
however, that photographs embedded in other, covered, works (e.g., 
photographs contained in books) are included within this scheme. Id. 
at art. 1(4).
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    The Office is interested in discussing how to address the problems 
presented by certain types of works, including specifically 
photographic and visual arts orphan works. Should an orphan works 
solution exclude any particular type of work or should it include all 
copyrighted works? Would the exclusion of certain types of works 
substantially undermine the effectiveness of any orphan works solution? 
If all types of works are included, what (if any) special provisions 
are required to ensure that all copyright owners, such as 
photographers, are treated equitably within the legislative framework? 
Do recent developments such as the creation of voluntary registries, 
like the PLUS Registry,\16\ mitigate any of the earlier concerns 
regarding the treatment of photographs?
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    \16\ See Plus Coalition, Inc., supra note 12. Both the 2008 
House and Senate bills would have delayed implementation until after 
such a registry was developed.
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Session 5: Types of users and uses subject to orphan works legislation
    The Copyright Office's previous orphan works review did not 
differentiate between commercial and noncommercial uses and users of 
orphan works. Since then, however, there has been a debate regarding 
whether an orphan works solution should take into account the user's 
status as either a commercial or noncommercial entity. For example, the 
Directive provides an exception for noncommercial public interest users 
making noncommercial public interest uses of orphan works.\17\ Any 
solution that excludes commercial users and uses, however, may arguably 
provide an incomplete solution. Some have argued that the policy 
motivations behind any orphan works legislation logically should extend 
to commercial uses that may promote the underlying goals of the 
Copyright Act. The United Kingdom's recently adopted orphan works 
legislation does not differentiate between commercial and noncommercial 
users or uses.
---------------------------------------------------------------------------

    \17\ See Directive, supra note 15, at art. 6(2).
---------------------------------------------------------------------------

    The Office thus is interested in learning more about whether an 
orphan works solution should encompass both commercial and 
noncommercial uses. Should orphan works legislation apply equally to 
commercial and noncommercial uses and users? If not, how should 
specific types of uses and users be treated within the legislative 
framework? Should orphan works legislation be limited only to uses by 
noncommercial entities with a public service mission? Should these 
entities be permitted to use orphan works only for limited purposes 
such as preservation, or should they be able to broadly use orphan 
works to provide access to the public? Should commercial entities be 
able to make commercial use of orphan works? What are the relative 
advantages or disadvantages of allowing such use?

Day Two

Session 1: Remedies and Procedures Regarding Orphan Works
    The Office's 2006 Report did not suggest creation of an exception 
to copyright for use of orphan works, but instead recommended that 
Congress limit the remedies that the copyright owner could seek against 
good faith users of orphan works to injunctive relief and ``reasonable 
compensation'' for the use of the work. The Office also recommended a 
``take-down'' option for certain noncommercial users engaged in 
noncommercial activities, which was incorporated in the proposed 2008 
legislation. In addition to the take-down provision, the legislation 
also would have (1) limited remedies to good faith users of orphan 
works having performed a reasonably diligent search, (2) been 
applicable on a case-by-case basis, and (3) permitted rights holders to 
reasonable compensation, but not statutory damages or attorneys' fees. 
The Senate bill would have allowed owners to reclaim their works by 
serving a ``Notice of Claim of Infringement,'' requiring the user to 
cease the infringement and negotiate in good faith with the rights 
holder.\18\
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    \18\ S. 2913, 110th Cong. sec. 2(a) Sec.  514(c)(1)(B), 
514(b)(1)(A) (2008).
---------------------------------------------------------------------------

    The appropriate structure and scope of remedies continues to be a 
significant issue of concern for both copyright owners and potential 
users of orphan works. For example, the threat and unpredictable nature 
of statutory damages, the need for predictability and reasonableness in 
assessing damages, and the rights available to creators of derivative 
works based on orphan works are all issues that warrant further 
discussion.
    The Office is interested in discussing remedies and procedures in 
the context of orphan works. What remedies should be available where 
orphan works rights holders emerge after a third party has already 
begun to use an orphaned work? What rights should be available for 
creators of derivative works based on orphan works? What procedures 
should be put in place where these situations arise? Does the 
limitation on liability model still make sense in the current legal 
environment? Should orphan works legislation instead be re-framed as an 
exception to copyright as it is in an increasing number of foreign 
jurisdictions?
Session 2: Mass Digitization, Generally
    The Office's 2006 Report and the 2008 proposed legislation did not 
consider the issue of mass digitization in detail. Although mass 
digitization was ongoing in 2008, the practice has since become much 
more prevalent. Thus, it is important to understand how mass 
digitization fits into an orphan works solution. Because many of the 
comments submitted in response to the Notice indicated that the issue 
of mass digitization should be treated separately from the issue of 
orphan works, it also is important to understand whether mass 
digitization fits into an orphan works solution.
    The Copyright Office would like to discuss the intersection of mass 
digitization and orphan works at the public roundtable meetings. As a 
preliminary matter, the Office is interested in discussing what types 
of digitization projects should be covered by any legislative proposal, 
including the scope of activities that can be accurately described as 
``mass digitization.'' Additionally, it is important to review the 
relative risks and benefits of mass digitization projects. The Office 
would like to discuss the types of entities that might

[[Page 7710]]

be able to engage in such activities under any legislative proposal, 
and the types or categories of works that should be covered. Moreover, 
under what circumstances should mass digitization projects proceed and 
how may digitized materials be used? How might any mass digitization 
solution differ from that of a general orphan works solution? Would 
potential solutions developed in the context of mass digitization 
ameliorate the issue of orphan works? How might these potential 
solutions interact?
Session 3: Extended Collective Licensing and Mass Digitization
    Several foreign countries have laws that address mass digitization 
in different ways. For example, recently-passed legislation in the 
United Kingdom creates a bifurcated approach allowing certain types of 
individual uses of orphan works and mass digitization.\19\ There, 
individual or occasional users of orphan works may apply for a non-
exclusive license from a centralized government or government-
sanctioned private agency on payment of a license fee held in escrow 
should rights holders re-emerge.\20\ Users also must perform a diligent 
search for the rights holder, which must be verified by the authorizing 
body before a license will be issued.\21\ Cultural institutions 
engaging in mass digitization, on the other hand, may digitize works 
(including orphan works) in their existing collections through an 
extended collective licensing regime.\22\ The licenses granted are not 
exclusive and all rights holders have the right to opt out of any 
license.\23\ Hungary has adopted a similar two-tier orphan works 
solution.\24\ Several Nordic countries also have adopted extended 
collective licensing regimes for limited types of works and uses in the 
context of mass digitization.\25\
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    \19\ See Enterprise and Regulatory Reform Act, 2013, c. 24, 
Sec.  77, available at http://www.legislation.gov.uk/ukpga/2013/24/section/77.
    \20\ Id.
    \21\ Id.
    \22\ Id. In extended collective licensing models, 
representatives of copyright owners and representatives of users 
negotiate terms that are binding on all members of the group by 
operation of law (e.g., all textbook publishers), unless a 
particular copyright owner opts out. Extended collective licensing 
regimes authorize the grant of broad licenses to make specified uses 
of in-copyright works for which it would be unduly expensive to 
clear rights on a work-by-work basis (e.g., mass digitization of in-
copyright works, photocopying in-copyright articles in library 
settings). The government or a trusted designee typically 
administers payments. It is not quite compulsory licensing in that 
the parties (rather than the government) negotiate the rates, but it 
nevertheless requires a legislative framework and often involves 
some degree of government oversight. See Notice, 77 FR 64559.
    \23\ Enterprise and Regulatory Reform Act 2013 at Section 77.
    \24\ 100/2009 (V. 8) Korm. rendelet az [aacute]rva m[uuml] egyes 
felhaszn[aacute]l[aacute]sainak enged[eacute]lyez[eacute]s[eacute]re 
vonatkoz[oacute] r[eacute]szletes szab[aacute]lyokr[oacute]l 
(Government Regulation on the Detailed Rules Related to the 
Licensing of Certain Use of Orphan Works), arts. 2(1), 2(2), 3 
(Hung.), available at http://www.hipo.gov.hu/English/jogforras/100_2009.pdf.
    \25\ See, e.g., Consolidated Act on Copyright 2010, No. 202, 
Art. 50-51 (2010) (Denmark); see also Copyright Act, No. 404, 
Sec. Sec.  13-14 (2010) (Finland).
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    The Office is interesting in reviewing the option of extended 
collective licensing for purposes of mass digitization in detail. For 
example, the Office is interested in discussing whether the United 
States should look abroad to foreign extended collective licensing 
approaches for ideas on domestic action on the issue of mass 
digitization. If so, which approach or components of any particular 
approach present attractive options for a potential U.S. course of 
action? Should such a system include both commercial and noncommercial 
uses, or be limited to noncommercial entities? How do extended 
collective licensing systems work in practice in the countries where 
they have been adopted? Are there statistics or any longitudinal data 
regarding the success of extended collective licensing regimes, 
particularly vis-[agrave]-vis orphan works and mass digitization, 
around the world? Further, would the U.S. political, legal, and market 
structures, which can be quite different from foreign counterparts, 
support an extended collective licensing-type solution?
Session 4: The Structure and Mechanics of a Possible Extended 
Collective Licensing System in the United States
    Extended collective licensing systems exist where representatives 
of copyright owners and users negotiate terms that are binding on both 
members and similarly situated non-members of the group by operation of 
law, unless an interested copyright rights holder elects to opt out. 
Collective management organizations function by establishing, 
collecting, and distributing these license fees. These organizations 
typically are sanctioned or overseen by the government. Where these 
organizations collect licensing fees relating to orphan works, they 
typically hold these fees until the owner emerges to collect the fee or 
for a statutorily set period of time. In this way, extended collective 
licensing may present an option for resolving many of the issues 
inherent in mass digitization projects, especially as they relate to 
the incidental digitization of orphan works contained in these 
digitized collections.
    While some other countries have embraced extended collective 
licensing, the United States currently does not have the legal 
framework for such a system. Nevertheless, there has been some 
discussion that extended collective licensing might be helpful in a 
mass digitization scenario. It is unclear, however, how extended 
collective licensing could integrate with the current U.S. legal 
infrastructure to streamline the licensing process, or whether it could 
possibly upset existing and well-functioning markets for certain 
copyright-protected works. Moreover, the mechanical operation of such a 
system is unclear; for example, questions remain regarding procedures 
whereby copyright rights holders may ``opt out'' of any extended 
collective licensing regime.
    The Office is interested in discussing specific details of an 
appropriate extended collective licensing system in the United States 
for mass digitization purposes. How might an extended collective 
licensing regime be structured in the United States? Could an extended 
collective licensing system be compatible with U.S. copyright laws, 
legal norms, and industry practices? How much direct oversight should 
the Office or any other governmental entity have over the 
establishment, authorization, and/or operation of collective management 
organizations? Are any existing collective management organizations in 
the United States capable of administering an extended collective 
licensing regime for mass digitization? If new collective management 
organizations are created, should they be structured as government 
entities, nonprofit entities licensed and/or funded by the government, 
or commercial entities licensed and/or funded privately or by the 
government?
    Additionally, the Office recognizes that the opt-out and orphan 
works issues inherent in mass digitization projects are ripe for 
further discussion. For example, should rights holders be permitted to 
opt out of any extended collective licensing system at any time? How 
would rights holders' ability to opt out affect licensees who may have 
made significant investments in the use of licensed works? How should 
orphan works ``incidentally'' included in a mass digitization project 
be handled? Should the collective management organization be 
responsible for attempting to locate all rights holders and, if so, 
should a ``reasonably diligent search'' standard be applied to the 
organization? How should license fees be calculated and how should 
remuneration of authors and authors' groups be handled? What

[[Page 7711]]

types of entities should be able to utilize an extended collective 
licensing system for mass digitization?

    Dated: February 5, 2014.
Karyn A. Temple Claggett,
Associate Register of Copyrights and Director of Policy and 
International Affairs.
[FR Doc. 2014-02830 Filed 2-7-14; 8:45 am]
BILLING CODE 1410-30-P