Orphan Works, 39341-39343 [05-13355]

Agencies

• Library of Congress
• Copyright Office
• Copyright Office, Library of Congress

[Federal Register Volume 70, Number 129 (Thursday, July 7, 2005)]
[Notices]
[Pages 39341-39343]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-13355]


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LIBRARY OF CONGRESS

Copyright Office


Orphan Works

AGENCY: Copyright Office, Library of Congress

ACTION: Notice of public roundtables.

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SUMMARY: The Copyright Office announces public roundtable discussions 
regarding ``orphan works,'' i.e., copyrighted works whose owners are 
difficult or even impossible to identify or locate. The Office seeks to 
address whether there are compelling concerns that merit a legislative, 
regulatory or other solution, and what type of solution could 
effectively address these concerns without conflicting with the 
legitimate interests of authors and right holders. The Office solicited 
and received written comments on these issues pursuant to a Notice of 
Inquiry issued earlier this year. See Notice of Inquiry, 70 FR 3739 
(Jan. 26, 2005). The Office will now hold roundtable discussions to 
further address the issues raised and solutions proposed in the written 
comments.

DATES: The public roundtable will first be held in Washington, D.C. on 
Tuesday, July 26, 2005, from 9:00 a.m. to 5:00 p.m. E.D.T., and on 
Wednesday, July 27, 2005, from 9:00 a.m. to 5:00 p.m. E.D.T. An 
additional roundtable will be held in Berkeley, California on Tuesday, 
August 2, 2005, from 9:00 a.m. to 5:00 p.m. P.D.T. Requests to 
participate in the roundtables must be received by the Copyright Office 
by 5:00 p.m. E.D.T. on July 15, 2005.

ADDRESSES: The roundtable in Washington, D.C. will be held in the 
Russell Senate Office Building, Room 188, Washington, D.C. 20510, on 
July 26, 2005, and in the Rayburn House Office Building, Room 2237, 
Washington, D.C., 20515, on July 27, 2005. The public roundtable in 
Berkeley, California will be held at the Boalt Hall School of Law, 
University of California - Berkeley, Berkeley, California 94720. 
Details on the precise location in Berkeley, California will be 
provided in advance of the meeting on the Copyright Office website, 
https://www.copyright.gov.

FOR FURTHER INFORMATION CONTACT: Oliver Metzger, Attorney-Advisor, 
Office of Policy & International Affairs, Email: omet@loc.gov; 
Telephone (202) 707-8350; Fax (202) 707-8366.

SUPPLEMENTARY INFORMATION:
Procedure for Submitting Requests to Participate
    The roundtable discussions will be open to the public. However, 
persons wishing to participate in the discussions must submit a written 
request to the Copyright Office. The request to participate must 
include the following information: (1) the name of the person desiring 
to participate; (2) the organization(s) represented by that person, if 
any; (3) contact information (address, telephone, telefax, and e-mail); 
and (4) a one-page summary of the specific issues the participant (or 
his or her organization) wishes to address.
    The one-page summary must also identify in which of the four 
general roundtable topic areas the person would most like to 
participate in order of preference, along with the corresponding date, 
time and location (see below for detail). Space and time constraints 
may require us to limit participation in one or more of the topic 
areas, and there is a chance that not all requests to participate will 
be granted. Identification of the desired topic areas in order of 
preference will help the Office to ensure that participants will be 
heard in the area(s) of interest most critical to them. In addition, 
any person requesting participation in the roundtable who did not file 
a written initial or reply comment in response to the Notice of Inquiry 
published on January 26, 2005, 70 FR 3739 (January 26, 2005), must 
provide his or her statement of interest in this proceeding in his or 
her one-page summary. The Office will notify each participant in 
advance of his or her designated topic area(s), and the corresponding 
time(s) and location(s).
    Note also for those who wish to attend but not participate in the 
roundtables that space is limited. Seats will be available on a first-
come, first-served basis. However, all discussions will be transcribed, 
and transcripts subsequently made available on the Copyright Office 
website.
    Requests to participate may be submitted to the Office by e-mail 
(preferred), by commercial courier, or by hand delivery by a private 
party (submission by overnight service or regular mail will not be 
effective) as follows:
    1. If by e-mail (preferred): Send to orphanworks@loc.gov a message 
containing the information required above. The one-page summary of 
issues may be included in the text of the message, or may be sent as a 
MIME attachment. If sent as a MIME attachment, the summary must be in a 
single file in either: (1) Adobe Portable Document File (PDF) format; 
(2) Microsoft Word 2000 or earlier; (3) WordPerfect 9.0 or earlier; (4) 
Rich Text File (RTF) format; or (5) ASCII text file format.

[[Page 39342]]

    2. If by commercial, non-government courier or messenger: Address 
to Jule L. Sigall, Associate Register for Policy & International 
Affairs, U.S. Copyright Office, Room LM-403, James Madison Memorial 
Building, 101 Independence Avenue, SE, Washington, DC 20559-6000, and 
deliver to the Congressional Courier Acceptance Site (CCAS), 2nd and D 
Streets, NE, Washington, DC between 8:30 a.m. and 4:00 p.m., a cover 
letter with the information required above, and include three copies of 
the one-page summary of issues. (Note: the Copyright Office will 
consider the date of receipt at CCAS as the date of receipt in the 
Copyright Office.)
    3. If by hand delivery by a private party: Address to Jule L. 
Sigall, Associate Register for Policy & International Affairs, U.S. 
Copyright Office, James Madison Memorial Building, Room LM-401, 101 
Independence Avenue, SE, Washington, DC 20559-6000, and deliver to Room 
LM-401 of the James Madison Memorial Building, a cover letter with the 
information required above, and include three copies of the one-page 
summary of issues.

Background

    On January 26, 2005, the Copyright Office published a Notice of 
Inquiry in the Federal Register, 70 FR 3739 (Jan. 26, 2005), announcing 
its study of issues surrounding ``orphan works,'' i.e., copyrighted 
works whose owners are difficult or even impossible to identify or 
locate. The study is a response to concerns that difficulty in 
identifying and/or locating copyright owners can create difficulties in 
obtaining permission for subsequent creators and users to use works in 
socially productive ways, such as by incorporating these works in new 
creative efforts, or by making them available to the public. 
Specifically the Office seeks to address whether the problems 
identified in the comments merit a solution, and what type of solution 
could effectively address these problems without conflicting with the 
legitimate interests of authors and right holders.
    The original Notice of Inquiry invited the public to submit written 
comments. Initial Comments were first submitted to the Office during a 
60-day period following issuance of the Notice of Inquiry. Reply 
Comments were then submitted during an additional 45-day period. The 
Office received approximately 850 unique comments during these periods, 
all of which have been posted on the Copyright Office website (https://
www.copyright.gov/orphan).
    The Copyright Office has reviewed the Initial and Reply Comments 
and seeks further information and discussion on several issues raised 
by the Notice and this study. To help guide the discussion, the 
following Provisional Agenda will be followed in both the Washington, 
DC and Berkeley, CA roundtables:

Topic 1: Identification of Orphan Works

    Washington, DC: Tuesday, July 26, morning session
    Berkeley, CA: Tuesday, August 2, morning session
    The Notice of Inquiry invited comments on how the term ``orphan 
work'' should be defined, or how orphan works might be designated. It 
suggested two general approaches: (1) an ``ad hoc'' or case-by-case 
approach, setting forth basic parameters of what might constitute a 
sufficient search under the circumstances; and (2) a formal approach 
incorporating a registry or registries in various forms and with 
various effects. The Notice of Inquiry also invited comment on other 
threshold issues, such as whether certain works should be categorically 
excluded from designation as ``orphan works'' because of age, 
publication status, etc. While many comments addressed these issues in 
detail, the Copyright Office seeks further discussion on the following 
issues within this general area of concern:
    a. The ``due diligence''/``reasonable efforts'' search approach and 
standard.
    b. The role of registries of copyright ownership information and/or 
uses of purported orphan works.
    c. Inclusion or exclusion of unpublished works.
    d. Other threshold requirements, such as age of works, types of 
works, types of users, types of uses.

Topic 2: Consequences of an ``Orphan Works'' Designation

    Washington, DC: Tuesday, July 26, afternoon session
    Berkeley, CA: Tuesday, August 2, afternoon session
    Assuming that a work is identified or designated as an orphan work, 
a wide range of legal consequences may potentially result. The Notice 
of Inquiry summarized some of these consequences, while others were 
suggested and addressed in the written comments. These consequences 
vary in nature and degree, from limitations on the remedies available 
to a reappearing owner, to the payment of a mandatory fee by the user 
in a variety of forms, to a statutory exemption explicitly authorizing 
various uses, to termination of all rights in the work through entry 
into the public domain. The Copyright Office seeks further information 
on the following issues within this topic area:
    a. The ``limitations on remedies'' approach.
    b. The exemption and public domain approaches.
    c. Payment of fees or escrow by the user.
    d. Other conditions/obligations on the user (e.g. time limits, 
notice, registration).
    e. Reliance (or ``piggybacking'') on previous searches by 
subsequent users.

Topic 3: Reclaiming Orphan Works

    Washington, DC: Wednesday, July 27, morning session
    Berkeley, CA: Tuesday, August 2, afternoon session
    Once a work has been designated an orphan work, resulting in any of 
a number of potential legal consequences, a formerly unidentified or 
missing copyright owner may reappear and attempt to assert rights in 
the work. This assertion of rights might occur during any number of 
stages in the process of exploiting of the work, and after a user may 
have incurred costs in reliance on the continuing unavailability of the 
original owner. The assertion of rights may also occur in a variety of 
forms, from informal communication between the original owner and user, 
to formal litigation over rights in the work. The Copyright Office 
seeks further discussion of the following issues within this topic 
area:
    a. The consequences of owner reappearance for uses in the process 
of being prepared for exploitation (whether derivative uses or other 
uses in preparation), and for ongoing exploitations.
    b. The burden of proof in litigation, on issues such as the 
reasonableness of a user's search.
    c. Statutory damages and attorneys fees.
    d. Rights in derivative works based on an orphan work.

Topic 4: International Issues

    Washington, DC: Wednesday, July 27, afternoon session
    Berkeley, CA: Tuesday, August 2, afternoon session
    The Notice of Inquiry specifically asked how any proposed solution 
to orphan works problems might be reconciled with existing 
international obligations regarding copyright. These obligations 
include the prohibition against formalities in the Berne Convention, as 
well as limitations on the nature of exceptions imposed by the TRIPS 
Agreement. Several comments addressed these questions specifically,

[[Page 39343]]

but also raised other concerns when the international dimensions of 
orphan works problems are considered. The Copyright Office seeks 
further information on the following issues within this topic area:
    a. Compliance of various alternatives with the Berne Convention 
prohibition against formalities.
    b. Compliance of various alternatives with TRIPS/Berne ``three-
step'' test for limitations or exceptions.
    c. Exclusion of foreign works from the orphan work definition.
    d. Gathering information on experience in other countries with 
orphan works issues.
    The roundtable might also take up other issues not encompassed by 
the above agenda if time permits.

    Dated: June 30, 2005
Marybeth Peters,
Register of Copyrights.
[FR Doc. 05-13355 Filed 7-6-05; 8:45 am]
BILLING CODE 1410-30-S