Orphan Works and Mass Digitization, 64555-64561 [2012-25932]
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Federal Register / Vol. 77, No. 204 / Monday, October 22, 2012 / Notices
will be distributed on or about
January 1, 2013.
This notice is issued pursuant to 42
U.S.C. 2996f(f). Comments and
recommendations concerning potential
grantees are invited, and should be
delivered to LSC within thirty (30) days
from the date of publication of this
notice.
Victor M. Fortuno,
Vice President & General Counsel.
[FR Doc. 2012–25948 Filed 10–19–12; 8:45 am]
BILLING CODE 7050–01–P
LIBRARY OF CONGRESS
Copyright Office
[Docket No. 2012–12]
Orphan Works and Mass Digitization
Copyright Office, Library of
Congress.
ACTION: Notice of inquiry.
AGENCY:
The U.S. Copyright Office is
reviewing the problem of orphan works
under U.S. copyright law in
continuation of its previous work on the
subject and in order to advise Congress
as to possible next steps for the United
States. The Office has long shared the
concern with many in the copyright
community that the uncertainty
surrounding the ownership status of
orphan works does not serve the
objectives of the copyright system. For
good faith users, orphan works are a
frustration, a liability risk, and a major
cause of gridlock in the digital
marketplace. The issue is not contained
to the United States. Indeed, in recent
months, the European Commission has
adopted measures that would begin to
resolve the issue in certain contexts and
a number of foreign governments are
reviewing or proposing solutions. The
Copyright Office seeks comments
regarding the current state of play for
orphan works. It is interested in what
has changed in the legal and business
environments during the past few years
that might be relevant to a resolution of
the problem and what additional
legislative, regulatory, or voluntary
solutions deserve deliberation. This is a
general inquiry and the Office will
likely publish additional notices on this
topic.
DATES: Comments are due by 5:00 p.m.
EST on January 4, 2013. Reply
comments are due by 5:00 p.m. EST on
February 4, 2013.
ADDRESSES: All comments shall be
submitted electronically. A comment
page containing a comment form is
posted on the Copyright Office Web site
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SUMMARY:
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at https://www.copyright.gov/orphan/
comment-submission. 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 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 format (not a scanned
document). The form and face of the
comments must include both the name
of the submitter and organization. The
Copyright Office will post all comments
publicly on the Copyright 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
Copyright Office at 202–707–8350 for
special instructions.
FOR FURTHER INFORMATION CONTACT:
Karyn Temple Claggett, Senior Counsel,
Office of Policy and International
Affairs, by email at kacl@loc.gov; or
Catherine Rowland, Senior Counsel,
Office of Policy and International
Affairs, by email at crowland@loc.gov;
or contact the Copyright Office by
telephone, at 202–707–8350.
SUPPLEMENTARY INFORMATION:
I. Background
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.1 Under current law,
anyone who uses an orphan work
without permission runs the risk that
the copyright owner(s) may bring an
infringement lawsuit for substantial
damages, attorneys’ fees, and/or
injunctive relief unless a specific
exception or limitation to copyright
applies.2 In such a situation, a
productive and beneficial use of the
work may be inhibited—not because the
1 See United States Copyright Office, Report on
Orphan Works (2006) (‘‘Orphan Works Report’’ or
‘‘Report,’’ at 1, available at https://
www.copyright.gov/orphan/orphan-report.pdf.
2 The Copyright Act, 17 U.S.C. § 101 et seq.,
includes several exceptions and limitations that
would allow use of orphan works under certain
circumstances, such as § 107 (fair use), § 108(h) (use
by libraries during the last twenty years of the
copyright term), and § 115(b) (statutory license to
distribute phonorecords). The Office concluded in
its Orphan Works Report, however, that existing
provisions would not address many orphan works
situations. See Orphan Works Report at 7.
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copyright owner has asserted his
exclusive rights in the work, or because
the user and owner cannot agree on the
terms of a license—but merely because
the user cannot identify and/or locate
the owner and therefore cannot
determine whether, or under what
conditions, he or she may make use of
the work. This outcome is difficult if not
impossible to reconcile with the
objectives of the copyright system and
may unduly restrict access to millions of
works that might otherwise be available
to the public (e.g., for use in research,
education, mainstream books, or
documentary films). Accordingly,
finding a fair solution to the orphan
works problem remains a major goal of
Congress and a top priority for the
Copyright Office.
A. 2006 Report on Orphan Works
The Copyright Office published its
Orphan Works Report (‘‘Report’’) in
January 2006, after conducting a
comprehensive study at the request of
Congress. The Report documented the
experiences of users who are unable to
find copyright owners, the kinds of
works at issue, and the kinds of projects
that may be forestalled. It analyzed the
legal issues, including the application of
statutory damages in the orphan works
context, and discussed a variety of
possible solutions. In preparing the
Report, the Office conducted an
extensive public outreach process,
including a series of roundtables in New
York City and Washington, DC and a
public comment period that yielded
over 850 written comments from a
variety of stakeholders. In short, the
Office concluded that the problem of
orphan works is pervasive; it affects a
broad cross-section of stakeholders
including members of the general
public, archives, publishers, and
filmmakers.
The orphan works problem was
exacerbated by a series of changes in
U.S. copyright law over the past thirtyplus years. These changes slowly but
surely relaxed the obligations of
copyright owners to assert and manage
their rights and removed formalities in
the law that had served in part to
provide users with readily accessible
copyright information. Significant
among those changes were the
elimination of the registration and
notice requirements, which resulted in
less accurate and incomplete identifying
information on works, and the
automatic renewal of copyrighted works
that were registered before the effective
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date of the 1976 Copyright Act.3
Subsequent amendments, such as the
Sonny Bono Copyright Term Extension
Act of 2008, extended the duration of
copyright and increased the likelihood
that some copyright owners would
become unlocatable. To be clear,
Congress amended the law for sound
reasons, primarily to protect authors
from technical traps in the law and to
ensure U. S. compliance with
international conventions. However,
‘‘the net result of these amendments has
been that more and more copyright
owners may go missing.’’ 4
As reflected in the Report, all kinds of
works are potentially at issue, from
music to books to film clips. That said,
the Report also reflects that a significant
percentage of the problem, if not the
lion’s share, involves orphan
photographs. Photographs are
particularly challenging because they
affect a vast variety of images, from
historically important archival
photographs residing in archives to
contemporary photographs for which
there may or may not be a living
copyright owner. Photographs of all
kinds also frequently lack or may
become divorced from ownership
information; that is, no label or caption
is affixed to the photographs
themselves. As a result, potential users
of photographic works often lack the
most basic information to begin a
search. The Office received many
comments focused on the difficulty of
obtaining information about the author
or copyright owner of individual
photographs, and the numerous
situations where photographs could not
be used because the potential user could
not discern a search path, let alone
ownership.
After reviewing a number of possible
legislative solutions, the Office
recommended a limitation on remedies,
with some caveats. In general, the Office
recommended that Congress amend the
Copyright Act to limit the remedies
available against good faith users of
orphan works after the user had
performed a ‘‘reasonably diligent
search’’ for the owner of that work and
conditional upon the user providing
attribution to the author and owner of
the work wherever possible.5 Notably,
the Office did not at this early stage
recommend specific statutory or
3 These changes, as well as other changes in the
1976 Act and in the Berne Convention
Implementation Act of 1988, were important steps
toward harmonizing U.S. copyright law with
international treaties.
4 Letter of Marybeth Peters, Register of
Copyrights, U.S. Copyright Office (Sept. 25, 2008),
available at https://www.copyright.gov/orphan/.
5 See Orphan Works Report at 93–120.
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regulatory guidelines for determining a
reasonably diligent search, but
‘‘favor[ed] the development of
guidelines or even binding criteria’’ by
users and stakeholders.6 If a user
satisfied the statutory requirements, the
Office recommended that Congress limit
the remedies that the copyright owner
could seek against the good faith user of
an orphan work to injunctive relief and
‘‘reasonable compensation’’ for the use
of the work.7 The Office also
recommended a ‘‘take-down’’ option for
certain noncommercial users engaged in
noncommercial activities.
B. 2008 Proposed Legislation
Both the 109th and the 110th
Congresses considered the orphan
works problem, in each case introducing
legislation that built upon many of the
Copyright Office’s recommendations.8
The proposed legislation would have:
(1) Limited remedies available under the
Copyright Act when a user is unable to
locate the copyright owner or other
appropriate rights holder after
conducting a good faith reasonably
diligent search; (2) been applicable on a
case-by-case basis, meaning that users
could not assume that an orphan work
would retain its orphan status
indefinitely; and (3) permitted the
copyright owner or other rights holder
later to collect reasonable compensation
from the user, but not statutory damages
or attorneys’ fees. In other words, the
proposed legislation did not create an
exception or limitation of general
applicability, but rather placed a
limitation on the remedies that might be
imposed in a particular circumstance
with respect to a particular user. The
legislation also provided a special
provision for noncommercial actors
engaged in noncommercial activities,
with some conditions.
Photographs proved to be a
particularly complex and difficult area
to resolve. As cited in the Report and
the congressional deliberations that
followed, the problem of orphan
photographs is well documented. At the
same time, Congress wrestled with how
best to protect photographers who are
the victims of accidental or nefarious
acts, including purposeful deletion of
bylines, captions, or digital watermarks.
The 2008 bills built upon the
foundation of the 2006 bill and included
a number of proposals designed with
6 Id.
at 108–10.
7 Id. at 115–21.
8 Proposed bills included: The Shawn Bentley
Orphan Works Act of 2008, S. 2913, 110th Cong.
(2008), which was passed by the Senate; the Orphan
Works Act of 2008, H.R. 5889, 110th Cong. (2008);
and the Orphan Works Act of 2006, H.R. 5439,
109th Cong. (2006).
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photographers in mind, such as: A
provision in both the House and the
Senate drafts that required users to
promptly compensate copyright owners
should they appear (including for
example, where the amount of payment
might be too small to make litigation to
collect it worthwhile); provisions in
both drafts that would have excluded
infringements resulting from fixation of
a pictorial, graphic, or sculptural work
in or on a useful article that is offered
for sale or other commercial distribution
to the public (e.g., the use of
photographs on tote bags or similar
mass merchandise); and a provision in
the House draft that required a user to
file search information and related
evidence with the Copyright Office
under fees to be set by regulation.
Moreover, the 2008 bills would have
delayed the effective date of legislation
until such time as the Copyright Office
could confirm the availability of two
‘‘separate and independent searchable,
comprehensive electronic databases,
that allow for searches of copyrighted
works that are pictorial, graphic, and
sculptural works[.]’’ 9
Search criteria also became a major
focus in both the House and the Senate,
and stakeholders with a variety of
perspectives engaged in discussions and
refinement of the bills throughout the
2008 deliberations. Ultimately, Congress
settled upon an innovative mix of
mandatory and voluntary requirements
that served to provide meaningful
guidance to users, and incentives to
copyright owners to make themselves
locatable (including through investment
in registries and search tools that might
connect users to them). For example, the
bills set forth certain baseline
requirements (such as searching the
online records of the Copyright Office),
but also would have required users to
consult the best practices applicable to
the work at issue (e.g., practices for
finding photographers or filmmakers),
which would be developed through the
participation of both copyright owners
and copyright users and coordinated by
the Register of Copyrights.
Congress came very close to adopting
a consensus bill shortly before the
presidential election in 2008, but did
not enact orphan works legislation
before adjourning.
9 See H.R. 5889, at Section 4(b)(1) (delaying
effective date of legislation for pictorial, graphic,
and sculptural works until January 2013 or the
Copyright Office could confirm the availability of
searchable databases); see also S. 2913, at Section
2 (delaying effective date of entire legislation until
January 2013 or the Copyright Office could confirm
the availability of searchable databases for certain
pictorial, graphic, and sculptural works).
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C. Ongoing Litigation
Recent high-profile litigation in the
United States raised additional
questions and concerns regarding
orphan works, particularly in the
context of mass digitization. The
possibility of mass digitization was not
squarely addressed by parties
responding to the Copyright Office in
2005–2006, is not a focus of the Orphan
Works Report, and was not addressed by
Congress in its proposed legislation. The
Report does reflect some limited
discussion of the increased risk of
institutions that might want to use more
than one orphan work in a single
project, such as an archive posting
multiple historic images to its Web site.
This discussion informed and led to the
special provisions for noncommercial
actors addressed above, but it did not
address situations where works might
be digitized systematically, including
for preservation purposes, or situations
where collections of works might be
reproduced en masse, including through
public-private partnerships. Ultimately,
the issues at the heart of mass
digitization are policy issues of a
different nature: the works may in fact
have copyright owners, but it may be
too labor-intensive and too expensive to
search for them, or it may be factually
impossible to draw definitive
conclusions about who the copyright
owners are or what rights they actually
own.
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(1) Google Books Search Litigation
In 2004, Google began an ambitious
project to scan and digitize millions of
books held in several major academic
libraries, including many books still
protected by copyright. As part of its
‘‘Google Books’’ project, Google
provided digital copies of the scanned
books to partner libraries and made text
of the books available for online
searching. Users were permitted to view
‘‘snippets’’ of scanned books that were
still protected by copyright and to
download full copies of books that were
in the public domain. Google did not,
however, obtain permission from the
relevant copyright owners for the
project. In 2005, a group of authors and
publishers filed a class action lawsuit in
federal district court asserting that the
Google Books project amounted to
willful copyright infringement.10
The parties filed a proposed
settlement with the district court on
10 For a discussion of the background of the case,
see Authors Guild, Inc. v. Google Inc., 770 F. Supp.
2d 666 (S.D.N.Y. 2011). A group of photographers
and illustrators filed a related suit in 2010. See Am.
Soc’y of Media Photographers, Inc. v. Google Inc.,
No. 10–2977 (S.D.N.Y. 2010).
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October 28, 2008. After significant
objections from various individual
authors, groups, and foreign
governments, the parties filed an
amended settlement agreement on
November 13, 2009. Under the terms of
the amended settlement, copyright
owners of out-of-print books were
required to ‘‘opt out’’ of the settlement
or their works could be scanned,
digitized, and exploited by Google
through a number of new business
arrangements. These business
arrangements included online access,
use of the books in subscription
databases, and use of advertisements in
connection with these services. The
settlement also proposed to establish a
‘‘Book Rights Registry’’ (the ‘‘Registry’’)
that would maintain a database of rights
holders and administer distribution of
revenues from exploitation of the
scanned books. Google would provide
payments to the Registry on behalf of
rights holders and, in turn, the Registry
would distribute the funds to registered
rights holders. If no rights holder came
forward to claim the funds after a
certain amount of time, the funds could
be used to cover the expense of
searching for copyright owners or
donated to literary-based charities.11
The Department of Justice (‘‘DOJ’’)
filed two statements of interest in the
case on behalf of the United States. DOJ
acknowledged that ‘‘[b]reathing life into
millions of works that are now
effectively dormant’’ and increasing
public access to those works is a
‘‘worthy objective[ ].’’ 12 At the same
time, DOJ expressed concern that the
settlement could conflict with core
principles of the Copyright Act and also
confer a ‘‘significant and possibly
anticompetitive advantage’’ on
Google.13
On March 22, 2011, Judge Chin of the
United States District Court for the
Southern District of New York rejected
the amended settlement agreement filed
in the case.14 The opinion
acknowledged that ‘‘the benefits of
Google’s book project are many.’’ 15 The
court, however, also expressed concern
about the potential reach of the parties’
proposal. Ultimately, the court
concluded that the proposed settlement
would inappropriately implement a
11 See Authors Guild, Inc., 770 F. Supp. 2d at
670–71.
12 Statement of Interest of the United States of
America Regarding Proposed Amended Settlement
Agreement, Authors Guild, Inc. v. Google, Inc., No.
05–8136 (S.D.N.Y Feb. 4, 2010) at 1, available at
https://www.justice.gov/atr/cases/f255000/
255012.pdf.
13 Id. at 2.
14 See Authors Guild, Inc., 770 F. Supp. 2d 666.
15 Id. at 670.
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forward-looking business arrangement
granting Google significant rights to
exploit entire books without permission
from copyright owners, while at the
same time releasing claims well beyond
those presented in the dispute.16 The
court noted that the settlement would
give Google—and Google alone—the
ability to control the digital
commercialization of millions of books
as it would require authors and other
rights holders of out-of-print books to
‘‘opt out’’ of the settlement by objecting
to the reproduction, distribution, and
display of their works.
The court rejected the settlement in
part because of the settlement’s
treatment of orphan works. The court
expressly deferred to Congress on
orphan works-related issues, stating that
the ‘‘questions of who should be
entrusted with guardianship over
orphan books, under what terms, and
with what safeguards, are matters more
appropriately decided by Congress than
through an agreement among private,
self-interested parties.’’ 17 Citing
Supreme Court precedent, the court also
affirmed that it is ‘‘Congress’s
responsibility to adapt the copyright
laws in response to changes in
technology.’’ 18 Finally, the court
asserted that the settlement agreement
would raise international concerns and
thus for that reason as well, ‘‘the matter
is better left for Congress.’’ 19
The Second Circuit recently stayed
the case pending Google’s appeal of
class certification. On October 4, 2012,
the five major publisher plaintiffs
settled with Google. According to public
statements about the settlement, the
publisher plaintiffs will be permitted to
choose whether or not to include
digitized books in the Google Books
project.20 Further details of the
settlement have not been made public.
Notably, the settlement does not appear
to require formal court approval because
it only resolves the claims of the
specific publisher plaintiffs. The
settlement does not affect claims made
by the Authors Guild or non-parties to
the lawsuit. Therefore, the settlement
would not address claims over orphan
works.
(2) HathiTrust Litigation
On September 12, 2011, the Authors
Guild, along with two foreign authors’
groups and a number of individual
16 Id
at 677.
17 Id.
18 Id.
19 Id.
at 678.
Statement of the Ass’n of Am. Publishers,
Publishers and Google Reach Settlement (Oct. 4,
2012), available at https://www.publishers.org/press/
85/.
20 See
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authors, sued an online digital
repository known as the HathiTrust
Digital Library (‘‘HathiTrust’’) and its
five major university partners.21 The
suit challenged HathiTrust’s digitization
efforts and its plan to digitize and make
available orphan works to faculty,
students, and library patrons (the
‘‘Orphan Works Project’’). In addition to
its overarching claim of copyright
infringement, the complaint alleged,
inter alia, that the Authors Guild was
easily able to locate several of the
authors whose works were deemed
orphaned and digitized by the
HathiTrust. Thus, the Authors Guild
argued that the Orphan Works Project
was not actually limited to orphan
works. The Authors Guild sought an
injunction preventing defendants from
‘‘making available any so-called orphan
work protected by copyright’’ and
impoundment of ‘‘all unauthorized
digital copies of works protected by
copyright.’’ 22 Shortly thereafter,
HathiTrust suspended the Orphan
Works Project indefinitely.
On July 27, 2012, the parties in
Authors Guild, Inc. v. HathiTrust
submitted their final round of briefs
connected to their motions for summary
judgment.23 The Authors Guild’s
motion asked the court to reject the
defendants’ copyright defenses,
including fair use. The Authors Guild
also urged the court to issue an
injunction against the HathiTrust’s
suspended Orphan Works Project. The
Authors Guild acknowledged in its
reply brief that the ‘‘issues raised by
orphan works * * * are important,’’ but
argued that ‘‘[b]y scanning the books
without authority, Defendants usurp
authors’ rights to control the digital
reproduction of their work and expose
them to security risks that previously
did not exist.’’ 24
The HathiTrust and its partner
libraries argued in their reply brief that
all four factors of a fair use analysis
favor the libraries’ activities, even in an
environment of rapid technological
advancement.25 ‘‘Plaintiffs continue to
ask this Court to wait for Congress to
21 Authors Guild, Inc. v. HathiTrust, No. 11–6351
(S.D.N.Y. filed Sept. 12, 2011).
22 First Am. Compl. at page 28, Authors Guild,
Inc. v. HathiTrust, No. 11–6351 (S.D.N.Y 2011).
23 A third motion, in support of the HathiTrust,
was filed by the National Federation of the Blind.
See Def. Intervenors’ Reply in Supp. of Mot. for
Summ. J., Authors Guild, Inc. v. HathiTrust, No.
11–6351 (S.D.N.Y. filed July 27, 2012).
24 See Reply Mem. of Law in Further Supp. of
Pls.’ Mot. for Summ. J. at 1, 2, Authors Guild, Inc.
v. HathiTrust, No. 11–6351 (July 27, 2012).
25 See Reply Mem. in Supp. of the Libraries’ Mot.
for Summ. J. on Fair Use and Lack of Infringement
Under Section 106 of the Copyright Act, Authors
Guild, Inc. v. HathiTrust, No. 11–6351 (S.D.N.Y.
July 27, 2012).
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legislate,’’ the defendants stated, but
‘‘[w]here, as here, Congress has not
spoken, courts should ‘take the
Copyright Act * * * as [they] find it,’
rather than close off publicly beneficial
uses made possible by a new
technology.’’ 26
On October 10, 2012, the district court
ruled in favor of the HathiTrust and its
partner libraries on issues relating to
digitization, preservation, searching,27
and access for the print-disabled.28 The
court found that these activities are
largely transformative and ultimately
protected by fair use, further opining
that ‘‘the underlying rationale of
copyright law is enhanced’’ by the
HathiTrust digital library.29 The court
did not reach the merits of the copyright
claims with respect to the Orphan
Works Project, however, finding instead
that the issue is not ripe for adjudication
because the contours of the Orphan
Works Project have changed and the
defendants have suspended the
project.30
D. The Role of the Copyright Office and
Private Registries
In October 2011, the Register of
Copyrights released a two-year plan of
priorities and special projects for the
U.S. Copyright Office. The special
projects include several technical
endeavors designed to update the
Office’s record systems, which may help
users to locate a copyright owner or
confirm the suspicion that no such
owner exists.
(1) Historic Copyright Records
One such project is the Office’s
multiyear effort to digitize the entire
inventory of historic copyright records
dating back to 1870, many of which are
still relevant in determining the
copyright status of many works. Since
2008, the Office has digitized more than
22 million of the Office’s approximately
60 million historical records. The Office
is also engaged in a variety of
investigative endeavors, including
crowd sourcing, to determine how best
to make the records searchable. This
task is no small feat because the records
are unique and cannot be destroyed or
put at risk during the digitization
process. Some historical records date
back nearly to the civil war. They range
from index cards to large documents,
and some are written in pencil. Through
26 Id.
at 1 (citations omitted).
court took care to note that the searching
function did not reveal any copyrighted material.
See Authors Guild, Inc. v. HathiTrust, No. 11–CV–
6351, 2012 WL 4808939 (S.D.N.Y. Oct. 10, 2012).
28 See id.
29 Id. at *14.
30 Id. at *7–8.
27 The
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this project, the Office has engaged with
a number of experts and the public
(through meetings, blogs, and crowd
sourcing) to evaluate cost-effective
approaches to metadata capture, public
display, and how best to make the
scanned materials publicly available in
a meaningful way as soon as possible.
(2) Upgrades to Copyright Registration
and Recordation Systems
Alongside the digitization of the
Office’s historic records, the Office is
also actively pursuing a comprehensive
analysis of its electronic registration and
recordation systems, not only to
enhance the experience for authors and
copyright owners, who rely on these
services to secure legal rights, but also
to develop a plan for improving the
nature, accuracy, and searchability of
the Office’s public databases. The Office
is meeting with a diverse range of
business and information technology
experts to explore appropriate technical
upgrades and enhancements, including
exploring the feasibility of connecting
the Office’s database of copyright
ownership records with private sector
data to facilitate licensing and other
productive uses of copyrighted works.
Together, these projects lay the
foundation necessary to build and
maintain a twenty-first century database
of copyright ownership information that
will enhance public access to
information and improve potential
users’ ability to investigate the copyright
status of works, including the
identification and location of copyright
owners.
E. Discussion of Legal Issues in Mass
Digitization
Outside of litigation, the issue of mass
digitization has been aired largely
through the symposia of academic
institutions or professional associations
(i.e., bar associations).31 To further the
conversations, the Copyright Office
published a Preliminary Analysis and
Discussion Document (the
‘‘Analysis’’) 32 in October 2011, in
which it laid out the issues raised by the
intersection between copyright law and
the mass digitization of books, including
31 For example, the Berkeley Center for Law and
Technology hosted a symposium entitled Orphan
Works and Mass Digitization in April 2012.
Additionally, the Kernochan Center for Law, Media
and the Arts at Columbia Law School, in
cooperation with the Copyright Office, will present
a public symposium on November 2, 2012, which
will include discussions of mass digitization in the
context of Section 108.
32 United States Copyright Office, Legal Issues in
Mass Digitization: A Preliminary Analysis and
Discussion Document (2011), available at https://
www.copyright.gov/docs/massdigitization/
USCOMassDigitization_October2011.pdf.
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some of the issues raised by the Google
Books and HathiTrust cases. The Office
identified a number of key legal and
policy questions to explore when
assessing mass digitization, including
the objectives and public policy goals of
mass digitization projects, the interplay
among library exceptions, fair use, and
licensing, and the ability of public and
private actors to work together.
In the Analysis, the Office observed
that under current law the issues of
mass digitization and orphan works
cannot reasonably be separated from the
issue of licensing because the premise of
an orphan works situation is that a good
faith user has tried to, or would like to,
locate the copyright owner but cannot.
The Office described existing licensing
options (direct licensing and voluntary
collective licensing), as well as two
licensing models (extended collective
licensing and statutory licensing) that
might operate as potential if not partial
solutions for the orphan works problem,
particularly in the mass digitization
context.33
The Office noted that while the
United States has not adopted extended
collective licensing, these regimes exist
in a number of Nordic countries.34
Typically, this model operates
something like a class action settlement,
in the sense that 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. The government or a trusted
designee administers payments. It is not
quite compulsory licensing in that the
parties (rather than the government)
negotiate the rates, but it requires a
legislative framework and often involves
some degree of government oversight.
Finally, the Office discussed the
potential use of statutory licenses
created by Congress. Statutory licenses
provide users with access to certain
types of works, under certain
circumstances, in exchange for a
statutorily or administratively set fee.
The Office has traditionally viewed
statutory licenses as a mechanism of last
resort that must be narrowly tailored to
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33 In
the context of voluntary collective licensing
of books, the most experienced organization is the
Copyright Clearance Center (‘‘CCC’’). The CCC was
started by publishers in the age of photocopying
and has since evolved to handle certain kinds of
digital licenses. Voluntary collective licensing,
however, does not provide solutions for orphan
works where the authors are unknown and have not
joined the collecting society.
34 See Analysis at App. F (listing countries that
follow this approach and providing an overview of
the laws).
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address a specific failure in a
specifically defined market.
F. International Developments
Foreign countries are also renewing
their focus on the orphan works
problem. The European Union and
various other countries have recently
proposed or adopted a number of
legislative approaches to the orphan
works issue.
(1) Recent and Proposed Legislation
Like the United States, the European
Union has been grappling with the issue
of orphan works for many years. In
2011, the European Commission issued
a draft proposal for an orphan works
directive along with a working paper
entitled ‘‘Impact Assessment on the
Cross Border Online Access to Orphan
Works.’’ 35 The Commission
acknowledged the difficulties caused by
orphan works and noted that a solution
in the European Union was particularly
urgent to avoid a ‘‘knowledge gap’’ with
the United States if the then-pending
Google Books Settlement was approved.
The Commission identified several
policy options for handling orphan
works and assessed the economic and
social impacts of each. Among the
policy options the Commission
considered was a statutory exception,
extended collective licensing, and a
specific orphan works license.
The European Council formally
approved the proposed orphan works
directive (‘‘Directive’’) on October 4,
2012.36 The Directive requires Member
States to establish an exception and
limitation to the rights of reproduction
and ‘‘making available’’ for certain
permitted uses of orphan works. The
Directive excludes photographs unless
embedded in other works, and limits the
use of orphan works to ‘‘libraries,
educational establishments or museums
* * * archives, film or audio heritage
institutions and public service
broadcasting organizations’’ that are
located in Member States and that have
public service missions.37 A public
35 European Commission, Commission Staff
Working Paper Impact Assessment on the CrossBorder Online Access to Orphan Works
Accompanying the Proposal for a Directive of the
European Parliament and of the Council on Certain
Permitted Uses of Orphan Works, COM (2011) 289
final (May 24, 2011), available at https://
ec.europa.eu/governance/impact/ia_carried_out/
docs/ia_2011/sec_2011_0615_en.pdf.
36 The European Council’s approval marked the
last step in the legislative process. See Press
Release, Council of the European Union,
Intellectual Property: New EU Rules for Orphan
Works (Oct. 4, 2012), available at https://
www.consilium.europa.eu/uedocs/cms_data/docs/
pressdata/en/intm/132721.pdf.
37 See Directive of the European Parliament and
of the Council on Certain Permitted Uses of Orphan
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organization that falls under the
Directive may partner with a private
organization and ‘‘generate revenues in
relation to their use of orphan works’’ if
that use is consistent with the public
organization’s mission.38 The private
partner, however, will not be permitted
to use the works directly. The Directive
requires a diligent search and provides
that once a work is deemed orphaned in
one Member State, it is deemed orphan
in all Member States and ‘‘may be used
and accessed’’ in all Member States. The
Directive also calls for a single registry
to maintain data on all works deemed
orphan. A rights holder who later
resurfaces may reclaim ownership of a
work once deemed orphan and claim
fair compensation for the use of the
work as provided by individual Member
States’ laws. Member States have two
years to implement the Directive in
national legislation.
The European Commission also
recently assisted private parties in
negotiating a Memorandum of
Understanding (‘‘Memorandum’’) to
encourage voluntary collective licensing
for ‘‘out-of-commerce’’ books and
journals.39 ‘‘Out-of-commerce’’ works
are works that are no longer
commercially available because authors
and publishers have chosen not to
publish new editions or sell copies
through the customary channels of
commerce. The Memorandum expresses
several principles that libraries,
publishers, authors, and their collecting
societies should follow in order to
license the digitization and making
available of books or journals that are
out-of-commerce. The European
Commission views the Memorandum as
complimentary to its legislative
proposals for orphan works, and part of
a two-pronged approach to facilitate the
development of digital libraries in
Europe.
Additionally, the United Kingdom
issued proposed legislation 40 in 2012
that would amend the Copyright,
Designs and Patents Act of 1988 to
permit the commercial and noncommercial use of orphan works under
a licensing scheme that would include
both individual licensing of orphan
works as well as a form of voluntary
Works, Art. 1(1), available at https://
register.consilium.europa.eu/pdf/en/12/pe00/
pe00036.en12.pdf.
38 Id. at p. 13, ¶ 21.
39 Memorandum of Understanding, Key Principles
of the Digitsation and Making Available of Out-ofCommerce Works (Sept. 20, 2011), available at
https://ec.europa.eu/internal_market/copyright/
docs/copyright-infso/20110920-mou_en.pdf.
40 Enterprise and Regulatory Reform Bill, 2012–
13, (HC Bill 61), cl. 59, available at https://
www.publications.parliament.uk/pa/bills/cbill/
2012-;2013/0061/cbill_2012-20130061_en_1.htm.
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Federal Register / Vol. 77, No. 204 / Monday, October 22, 2012 / Notices
extended collective licensing. The
scheme would require a diligent search,
the results of which would be verified
by ‘‘an independent authorising
body.’’ 41 The proposal would also
establish an orphan works registry and,
if the name of the rights holder is
unknown (and therefore cannot be
credited), any licensed use of the work
would have to include a notice that
refers back to the registry.42 The
potential scheme is described as one in
which rights holders will always reserve
the right to opt out.43
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(2) Existing Laws
Several countries already have
adopted forms of orphan works
solutions in national law. The Canadian
Copyright Act (Section 77) permits users
to file applications with the Copyright
Board of Canada for the use of certain
types of orphan works on a case-by-case
basis. If an applicant demonstrates that
it made a reasonable effort to locate the
rights holder and the rights holder
cannot be located, the Board will
approve the request and issue a
conditional non-exclusive license.44
Pursuant to the Canada Copyright Act,
the Copyright Board may issue licenses
permitting uses including reproduction,
publication, performance, and
distribution. In June 2012, Canada
passed amendments to its Copyright Bill
that included an expansion of the
exception for nonprofit organizations
acting for the benefit of persons with
perceptual disabilities to cover crossborder exchanges of orphan works that
have been translated into a print
disabled format.45 The 2006 Orphan
Works Report identified some of the
Canadian system’s burdens, and several
studies have noted that it is rarely
used.46
France passed a law in February 2012
that would make it easier to digitize
twentieth century out-of-commerce
books, implicating books published in
France before January 1, 2001, which
41 See Government Policy Statement:
Consultation on Modernising Copyright, at 7 (July
2012), available at https://www.ipo.gov.uk/response2011-copyright.pdf.
42 Id. at 8.
43 See id. at 10; see also The BIS Blog, Copyright
Reform: Orphan Works and Extended Collective
Licensing, Aug. 14, 2012, available at https://
blogs.bis.gov.uk/blog/2012/08/14/copyright-reformorphan-works-and-extended-collective-licensing
(‘‘The Government’s proposals for ECL are not
compulsory nor can they be imposed on a sector.
It would be up to a collecting society to apply to
use the system and every rights holder would retain
the capacity to opt out.’’).
44 Copyright Act, R.S.C., c. C–42, s. 77 (1985)
(Can.), available at https://laws.justice.gc.ca/PDF/C42.pdf.
45 Id. at s. 32.
46 Orphan Works Report at 82–83.
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are not currently being commercially
distributed or published either in print
or digital formats.47 The scheme is
conducted on an opt-out basis and, if an
author chooses not to exploit the work
within six months of the inscription of
the book in the register managed by the
French National Library, the digital
rights are transferred to a designated
collective management organization.48 If
the copyright holder fails to claim rights
to works that have been transferred to a
designated collective management
organization after ten years, libraries
and archives will be allowed, with some
exceptions, to digitize and provide
access to the digitized works free of
charge so long as the institution does
not pursue a commercial or economic
advantage.49
Hungary amended its Copyright Act
in 2009 to permit the use of orphan
works under certain circumstances.
Under the amended Act, the Hungarian
Patent Office has the right to grant
licenses for certain uses of orphan
works to applicants who carry out a
documented diligent search and pay
compensation for such use.50 These
licenses are limited to the territory of
Hungary. Japan, Korea, and India have
adopted either compulsory or
government licensing for some orphan
works.51
Denmark and Finland both adopted
extended collective licensing regimes,
which allow collective licensing
47 See
Loi n° 2012–287 du 1er mars 2012 relative
`
´
a l’exploitation numerique des livres indisponibles
`
du xxe siecle [Law Number 2012–287 of March 1,
2012, on the Digital Exploitation of Unavailable
Books] Art. 134–1 (2012) (Fr.) (‘‘Law 2012–287’’),
available at https://www.legifrance.gouv.fr/
affichTexte.do;jsessionid=
4D8B77A47AA211DE6E336FD22AA18F60
.tpdjo09v_2?cidTexte=JORFTEXT
000025422700&dateTexte=20121016; see also
International Federation of Reproduction Rights
Organisations, French Parliament Passed Law on
Out of Commerce Works on 22nd February 2012,
(March 3, 2012), available at https://www.ifrro.org/
content/french-parliament-passed-law-outcommerce-works-22nd-february-2012.
48 See Law Number 2012–287, Art. 134–4.
49 See id., Art. 134–8.
50 See Government Regulation on the Detailed
Rules Related to the Licensing of Certain Use of
Orphan Works, Arts. 2(1), 2(2), 3, Decree 100/2009,
V. 8 (Hun.), available at https://www.hipo.gov.hu/
´
English/jogforras/100_2009.pdf; see also Mihaly
Ficsor, How to Deal with Orphan Works in the
Digital World? An Introduction to the New
Hungarian Legislation on Orphan Works (European
Parliament Committee on Legal Affairs, eds. 2009),
available at https://www.europarl.europa.eu/
RegData/etudes/divers/juri/2009/419607/IPOLJURI_DV(2009)419607_EN.pdf.
51 See Chosakuken-Ho [Copyright Law], Law No.
48 of 1970, 2009, art. 67, 74 (Japan), unofficial
translation available at https://www.cric.or.jp/cric_e/
clj/clj.html); see also Copyright Act of Korea, No.
9785 (2009) (S. Kor.); Copyright (Amendment) Act,
2012, at para. 17 (2012) (India), available at
https://copyright.gov.in/Documents/
CRACT_AMNDMNT_2012.pdf.
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organizations to license numerous
works within a specific field of use,
including works owned by rights
holders who are not members of the
organization and orphan works.52
II. Subject of Inquiry
The Copyright Office seeks comments
regarding the current state of play for
orphan works, including what has
changed in the legal and business
environments that might be relevant to
a resolution of the problem and what
additional legislative, regulatory, or
voluntary solutions deserve deliberation
at this time. The Office has posed two
questions below. In responding to these
questions, a party may wish to discuss
a number of relevant topics, including
for example: The merits of limiting
remedies; the interplay between orphan
works and fair use, section 108, section
121, or other exceptions and limitations;
the role of licensing; the types of orphan
works that should be implicated; the
types of users who should benefit; the
practical or legal hurdles to forming or
utilizing registries; international
implications; and the relative
importance of the Register’s plans to
improve the quality and searchability of
Copyright Office records. The Office
requests that responding parties
separately address each of the questions
for which a response is submitted and
provide as much specificity as possible.
1. Orphan Works on an Occasional or
Case-by-Case Basis
With respect to the occasional or
isolated use of an orphan work, how has
the legal landscape or legal thinking
evolved in the past four years? The 2008
proposed legislation included several
key components: (a) A good faith,
reasonably diligent search for the
copyright owner; (b) attribution to the
author and copyright owner, if possible
and appropriate under the
circumstances; and (c) a limitation on
remedies that would be available if the
user proves that he or she conducted a
reasonably diligent search. Good faith
users were expected to consult the
Copyright Office Web site for practices
proffered by copyright owners and users
alike under the direction and
coordination of the Register of
Copyrights. The legislation included
special provisions for certain
noncommercial actors using orphan
works in a noncommercial manner, as a
further attempt to reduce liability for
those perceived to be most risk-averse
under current law. Moreover, the
52 See Consolidated Act on Copyright 2010, No.
202, Art. 50–51 (2010) (Den.); see also Copyright
Act, No. 404, §§ 13–14 (2010) (Fin.).
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Federal Register / Vol. 77, No. 204 / Monday, October 22, 2012 / Notices
legislation would have applied to all
kinds of copyrighted works, published
or unpublished, from photographs to
manuscripts to music and books. Please
comment on the continued viability of
the above framework in the case of
occasional uses of orphan works. If
there are other possible approaches,
including approaches that might best be
described as interim approaches, please
explain the benefits and supporting
legal authority in sufficient detail.
2. Orphan Works in the Context of Mass
Digitization
The Office’s Orphan Works Report
did not analyze the issue of mass
digitization in detail, and the
subsequent 2008 proposed legislation
did not squarely address the possibility
of systematic or en masse copying,
display, or distribution. Please comment
on potential orphan works solutions in
the context of mass digitization. How
should mass digitization be defined,
what are the goals and what, therefore,
is an appropriate legal framework that is
fair to authors and copyright owners as
well as good faith users? What other
possible solutions for mass digitization
projects should be considered?
If there are any pertinent issues not
discussed above, the Office encourages
interested parties to raise those matters
in their comments. In addition, the
Office is considering and hereby
provides notice that it may convene one
or more roundtables or formal hearings
on the matters raised above in 2013. The
Office may also publish one or more
additional Notices of Inquiry.
Dated: October 17, 2012.
Maria A. Pallante,
Register of Copyrights.
[FR Doc. 2012–25932 Filed 10–19–12; 8:45 am]
BILLING CODE 1410–30–P
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
[Notice 12–083]
NASA Advisory Council; Technology
and Innovation Committee; Meeting
National Aeronautics and
Space Administration.
ACTION: Notice of meeting.
AGENCY:
The National Aeronautics and
Space Administration (NASA)
announces a meeting of the Technology
and Innovation Committee of the NASA
Advisory Council (NAC). The meeting
will be held for the purpose of
reviewing status of the Space
Technology programs; status of
activities within the Office of the Chief
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Technologist; update on the Advance
Exploration Systems program; status of
the Hypersonic Inflatable Aerodynamic
Decelerator project; status of the Space
Technology Research Grants program;
and a Mars Science Laboratory update.
DATES: Thursday, November 15, 2012,
8:00 a.m. to 4:00 p.m., Local Time.
ADDRESSES: NASA Headquarters, 300 E
Street SW., Room 2E39, Washington, DC
20546.
FOR FURTHER INFORMATION CONTACT: Mr.
Mike Green, Office of the Chief
Technologist, NASA Headquarters,
Washington, DC 20546, (202) 358–4710,
fax (202) 358–4078, or
g.m.green@nasa.gov.
The
meeting will be open to the public up
to the capacity of the room. This
meeting is also available telephonically
and by WebEx. Any interested person
may call the USA toll free conference
call number 866–804–6184, pass code
3472886, to participate in this meeting
by telephone. The WebEx link is
https://nasa.webex.com/, the meeting
number is 996 249 510, and the
password is TICmte@1115.
The agenda for the meeting includes
the following topics:
—Office of the Chief Technologist
Update
—Status of NASA’s Space Technology
program
—Briefing and overview of NASA’s
Advanced Exploration Systems
program
—Update on Mars Science Laboratory
and role of technology in mission
—Update on Space Technology
Research Grants program
—Status of the Hypersonic Inflatable
Aerodynamic Decelerator project
It is imperative that the meeting be
held on these dates to accommodate the
scheduling priorities of the key
participants. Attendees will be
requested to sign a register and to
comply with NASA security
requirements, including the
presentation of a valid picture ID, before
receiving an access badge. U.S. Citizens
will need to show a valid, officiallyissued picture identification such as a
driver’s license to enter the NASA
Headquarters building (West Lobby—
Visitor Control Center) and must state
that they are attending the NAC
Technology and Innovation Committee
meeting in room 2E39 before receiving
an access badge. Permanent Residents
will need to show residency status
(valid green card) and a valid, officially
issued picture identification such as a
driver’s license and must state that they
are attending the NAC Technology and
SUPPLEMENTARY INFORMATION:
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Innovation Committee meeting in Room
2E39 before receiving an access badge.
U.S. Citizens and Permanent Residents
are requested to submit their names and
affiliation 5 working days prior to the
meeting to Ms. Anyah Dembling via
email at anyah.b.dembling@nasa.gov or
by telephone at (202) 358–5195. Foreign
Nationals must provide to NASA the
following information: Full name;
gender; date/place of birth; citizenship;
social security number; green card
information (resident alien number,
expiration date); visa information
(number, type, expiration date);
passport information (number, country
of issue, expiration date); employer/
affiliation information (name of
institution, title/position, address,
country of employer, telephone, email
address); and the title/position of
attendee no less than 8 working days
prior to the meeting by contacting Ms.
Anyah Dembling via email at
anyah.b.dembling@nasa.gov or by
telephone at (202) 358–5195.
Patricia D. Rausch,
Advisory Committee Management Officer,
National Aeronautics and Space
Administration.
[FR Doc. 2012–25926 Filed 10–19–12; 8:45 am]
BILLING CODE 7510–13–P
NATIONAL FOUNDATION ON THE
ARTS AND THE HUMANITIES
President’s Committee on the Arts and
the Humanities: Meeting #68
National Endowment for the
Arts, National Foundation on the Arts
and Humanities.
ACTION: Notice of Meeting.
AGENCY:
Pursuant to section 10 (a)(2)
of the Federal Advisory Committee Act
(Pub. L. 92–463), as amended, notice is
hereby given that a meeting of the
President’s Committee on the Arts and
the Humanities (PCAH) will be held in
the Crystal Room, The Willard
Intercontinental, 1401 Pennsylvania
Avenue NW, Washington, DC 20004.
Ending time is approximate.
DATES: November 18, 2012 from 4:00
p.m. to 6:00 p.m.
FOR FURTHER INFORMATION CONTACT:
Lindsey Clark of the President’s
Committee at (202) 682–5409 or
lclark@pcah.gov.
SUPPLEMENTARY INFORMATION: The
meeting, on Sunday, November 18th,
will begin with welcome, introductions,
and announcements. Updates and
discussion on recent programs and
activities will follow. The meeting also
will include a review of PCAH ongoing
SUMMARY:
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]]>Agencies
[Federal Register Volume 77, Number 204 (Monday, October 22, 2012)]
[Notices]
[Pages 64555-64561]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-25932]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Office
[Docket No. 2012-12]
Orphan Works and Mass Digitization
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of inquiry.
-----------------------------------------------------------------------
SUMMARY: The U.S. Copyright Office is reviewing the problem of orphan
works under U.S. copyright law in continuation of its previous work on
the subject and in order to advise Congress as to possible next steps
for the United States. The Office has long shared the concern with many
in the copyright community that the uncertainty surrounding the
ownership status of orphan works does not serve the objectives of the
copyright system. For good faith users, orphan works are a frustration,
a liability risk, and a major cause of gridlock in the digital
marketplace. The issue is not contained to the United States. Indeed,
in recent months, the European Commission has adopted measures that
would begin to resolve the issue in certain contexts and a number of
foreign governments are reviewing or proposing solutions. The Copyright
Office seeks comments regarding the current state of play for orphan
works. It is interested in what has changed in the legal and business
environments during the past few years that might be relevant to a
resolution of the problem and what additional legislative, regulatory,
or voluntary solutions deserve deliberation. This is a general inquiry
and the Office will likely publish additional notices on this topic.
DATES: Comments are due by 5:00 p.m. EST on January 4, 2013. Reply
comments are due by 5:00 p.m. EST on February 4, 2013.
ADDRESSES: All comments shall be submitted electronically. A comment
page containing a comment form is posted on the Copyright Office Web
site at https://www.copyright.gov/orphan/comment-submission. 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 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 format (not a scanned document).
The form and face of the comments must include both the name of the
submitter and organization. The Copyright Office will post all comments
publicly on the Copyright 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 Copyright Office at
202-707-8350 for special instructions.
FOR FURTHER INFORMATION CONTACT: Karyn Temple Claggett, Senior Counsel,
Office of Policy and International Affairs, by email at kacl@loc.gov;
or Catherine Rowland, Senior Counsel, Office of Policy and
International Affairs, by email at crowland@loc.gov; or contact the
Copyright Office by telephone, at 202-707-8350.
SUPPLEMENTARY INFORMATION:
I. Background
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.\1\ Under current law, anyone
who uses an orphan work without permission runs the risk that the
copyright owner(s) may bring an infringement lawsuit for substantial
damages, attorneys' fees, and/or injunctive relief unless a specific
exception or limitation to copyright applies.\2\ In such a situation, a
productive and beneficial use of the work may be inhibited--not because
the copyright owner has asserted his exclusive rights in the work, or
because the user and owner cannot agree on the terms of a license--but
merely because the user cannot identify and/or locate the owner and
therefore cannot determine whether, or under what conditions, he or she
may make use of the work. This outcome is difficult if not impossible
to reconcile with the objectives of the copyright system and may unduly
restrict access to millions of works that might otherwise be available
to the public (e.g., for use in research, education, mainstream books,
or documentary films). Accordingly, finding a fair solution to the
orphan works problem remains a major goal of Congress and a top
priority for the Copyright Office.
---------------------------------------------------------------------------
\1\ See United States Copyright Office, Report on Orphan Works
(2006) (``Orphan Works Report'' or ``Report,'' at 1, available at
https://www.copyright.gov/orphan/orphan-report.pdf.
\2\ The Copyright Act, 17 U.S.C. Sec. 101 et seq., includes
several exceptions and limitations that would allow use of orphan
works under certain circumstances, such as Sec. 107 (fair use),
Sec. 108(h) (use by libraries during the last twenty years of the
copyright term), and Sec. 115(b) (statutory license to distribute
phonorecords). The Office concluded in its Orphan Works Report,
however, that existing provisions would not address many orphan
works situations. See Orphan Works Report at 7.
---------------------------------------------------------------------------
A. 2006 Report on Orphan Works
The Copyright Office published its Orphan Works Report (``Report'')
in January 2006, after conducting a comprehensive study at the request
of Congress. The Report documented the experiences of users who are
unable to find copyright owners, the kinds of works at issue, and the
kinds of projects that may be forestalled. It analyzed the legal
issues, including the application of statutory damages in the orphan
works context, and discussed a variety of possible solutions. In
preparing the Report, the Office conducted an extensive public outreach
process, including a series of roundtables in New York City and
Washington, DC and a public comment period that yielded over 850
written comments from a variety of stakeholders. In short, the Office
concluded that the problem of orphan works is pervasive; it affects a
broad cross-section of stakeholders including members of the general
public, archives, publishers, and filmmakers.
The orphan works problem was exacerbated by a series of changes in
U.S. copyright law over the past thirty-plus years. These changes
slowly but surely relaxed the obligations of copyright owners to assert
and manage their rights and removed formalities in the law that had
served in part to provide users with readily accessible copyright
information. Significant among those changes were the elimination of
the registration and notice requirements, which resulted in less
accurate and incomplete identifying information on works, and the
automatic renewal of copyrighted works that were registered before the
effective
[[Page 64556]]
date of the 1976 Copyright Act.\3\ Subsequent amendments, such as the
Sonny Bono Copyright Term Extension Act of 2008, extended the duration
of copyright and increased the likelihood that some copyright owners
would become unlocatable. To be clear, Congress amended the law for
sound reasons, primarily to protect authors from technical traps in the
law and to ensure U. S. compliance with international conventions.
However, ``the net result of these amendments has been that more and
more copyright owners may go missing.'' \4\
---------------------------------------------------------------------------
\3\ These changes, as well as other changes in the 1976 Act and
in the Berne Convention Implementation Act of 1988, were important
steps toward harmonizing U.S. copyright law with international
treaties.
\4\ Letter of Marybeth Peters, Register of Copyrights, U.S.
Copyright Office (Sept. 25, 2008), available at https://www.copyright.gov/orphan/.
---------------------------------------------------------------------------
As reflected in the Report, all kinds of works are potentially at
issue, from music to books to film clips. That said, the Report also
reflects that a significant percentage of the problem, if not the
lion's share, involves orphan photographs. Photographs are particularly
challenging because they affect a vast variety of images, from
historically important archival photographs residing in archives to
contemporary photographs for which there may or may not be a living
copyright owner. Photographs of all kinds also frequently lack or may
become divorced from ownership information; that is, no label or
caption is affixed to the photographs themselves. As a result,
potential users of photographic works often lack the most basic
information to begin a search. The Office received many comments
focused on the difficulty of obtaining information about the author or
copyright owner of individual photographs, and the numerous situations
where photographs could not be used because the potential user could
not discern a search path, let alone ownership.
After reviewing a number of possible legislative solutions, the
Office recommended a limitation on remedies, with some caveats. In
general, the Office recommended that Congress amend the Copyright Act
to limit the remedies available against good faith users of orphan
works after the user had performed a ``reasonably diligent search'' for
the owner of that work and conditional upon the user providing
attribution to the author and owner of the work wherever possible.\5\
Notably, the Office did not at this early stage recommend specific
statutory or regulatory guidelines for determining a reasonably
diligent search, but ``favor[ed] the development of guidelines or even
binding criteria'' by users and stakeholders.\6\ If a user satisfied
the statutory requirements, the Office recommended that Congress limit
the remedies that the copyright owner could seek against the good faith
user of an orphan work to injunctive relief and ``reasonable
compensation'' for the use of the work.\7\ The Office also recommended
a ``take-down'' option for certain noncommercial users engaged in
noncommercial activities.
---------------------------------------------------------------------------
\5\ See Orphan Works Report at 93-120.
\6\ Id. at 108-10.
\7\ Id. at 115-21.
---------------------------------------------------------------------------
B. 2008 Proposed Legislation
Both the 109th and the 110th Congresses considered the orphan works
problem, in each case introducing legislation that built upon many of
the Copyright Office's recommendations.\8\ The proposed legislation
would have: (1) Limited remedies available under the Copyright Act when
a user is unable to locate the copyright owner or other appropriate
rights holder after conducting a good faith reasonably diligent search;
(2) been applicable on a case-by-case basis, meaning that users could
not assume that an orphan work would retain its orphan status
indefinitely; and (3) permitted the copyright owner or other rights
holder later to collect reasonable compensation from the user, but not
statutory damages or attorneys' fees. In other words, the proposed
legislation did not create an exception or limitation of general
applicability, but rather placed a limitation on the remedies that
might be imposed in a particular circumstance with respect to a
particular user. The legislation also provided a special provision for
noncommercial actors engaged in noncommercial activities, with some
conditions.
---------------------------------------------------------------------------
\8\ Proposed bills included: The Shawn Bentley Orphan Works Act
of 2008, S. 2913, 110th Cong. (2008), which was passed by the
Senate; the Orphan Works Act of 2008, H.R. 5889, 110th Cong. (2008);
and the Orphan Works Act of 2006, H.R. 5439, 109th Cong. (2006).
---------------------------------------------------------------------------
Photographs proved to be a particularly complex and difficult area
to resolve. As cited in the Report and the congressional deliberations
that followed, the problem of orphan photographs is well documented. At
the same time, Congress wrestled with how best to protect photographers
who are the victims of accidental or nefarious acts, including
purposeful deletion of bylines, captions, or digital watermarks. The
2008 bills built upon the foundation of the 2006 bill and included a
number of proposals designed with photographers in mind, such as: A
provision in both the House and the Senate drafts that required users
to promptly compensate copyright owners should they appear (including
for example, where the amount of payment might be too small to make
litigation to collect it worthwhile); provisions in both drafts that
would have excluded infringements resulting from fixation of a
pictorial, graphic, or sculptural work in or on a useful article that
is offered for sale or other commercial distribution to the public
(e.g., the use of photographs on tote bags or similar mass
merchandise); and a provision in the House draft that required a user
to file search information and related evidence with the Copyright
Office under fees to be set by regulation. Moreover, the 2008 bills
would have delayed the effective date of legislation until such time as
the Copyright Office could confirm the availability of two ``separate
and independent searchable, comprehensive electronic databases, that
allow for searches of copyrighted works that are pictorial, graphic,
and sculptural works[.]'' \9\
---------------------------------------------------------------------------
\9\ See H.R. 5889, at Section 4(b)(1) (delaying effective date
of legislation for pictorial, graphic, and sculptural works until
January 2013 or the Copyright Office could confirm the availability
of searchable databases); see also S. 2913, at Section 2 (delaying
effective date of entire legislation until January 2013 or the
Copyright Office could confirm the availability of searchable
databases for certain pictorial, graphic, and sculptural works).
---------------------------------------------------------------------------
Search criteria also became a major focus in both the House and the
Senate, and stakeholders with a variety of perspectives engaged in
discussions and refinement of the bills throughout the 2008
deliberations. Ultimately, Congress settled upon an innovative mix of
mandatory and voluntary requirements that served to provide meaningful
guidance to users, and incentives to copyright owners to make
themselves locatable (including through investment in registries and
search tools that might connect users to them). For example, the bills
set forth certain baseline requirements (such as searching the online
records of the Copyright Office), but also would have required users to
consult the best practices applicable to the work at issue (e.g.,
practices for finding photographers or filmmakers), which would be
developed through the participation of both copyright owners and
copyright users and coordinated by the Register of Copyrights.
Congress came very close to adopting a consensus bill shortly
before the presidential election in 2008, but did not enact orphan
works legislation before adjourning.
[[Page 64557]]
C. Ongoing Litigation
Recent high-profile litigation in the United States raised
additional questions and concerns regarding orphan works, particularly
in the context of mass digitization. The possibility of mass
digitization was not squarely addressed by parties responding to the
Copyright Office in 2005-2006, is not a focus of the Orphan Works
Report, and was not addressed by Congress in its proposed legislation.
The Report does reflect some limited discussion of the increased risk
of institutions that might want to use more than one orphan work in a
single project, such as an archive posting multiple historic images to
its Web site. This discussion informed and led to the special
provisions for noncommercial actors addressed above, but it did not
address situations where works might be digitized systematically,
including for preservation purposes, or situations where collections of
works might be reproduced en masse, including through public-private
partnerships. Ultimately, the issues at the heart of mass digitization
are policy issues of a different nature: the works may in fact have
copyright owners, but it may be too labor-intensive and too expensive
to search for them, or it may be factually impossible to draw
definitive conclusions about who the copyright owners are or what
rights they actually own.
(1) Google Books Search Litigation
In 2004, Google began an ambitious project to scan and digitize
millions of books held in several major academic libraries, including
many books still protected by copyright. As part of its ``Google
Books'' project, Google provided digital copies of the scanned books to
partner libraries and made text of the books available for online
searching. Users were permitted to view ``snippets'' of scanned books
that were still protected by copyright and to download full copies of
books that were in the public domain. Google did not, however, obtain
permission from the relevant copyright owners for the project. In 2005,
a group of authors and publishers filed a class action lawsuit in
federal district court asserting that the Google Books project amounted
to willful copyright infringement.\10\
---------------------------------------------------------------------------
\10\ For a discussion of the background of the case, see Authors
Guild, Inc. v. Google Inc., 770 F. Supp. 2d 666 (S.D.N.Y. 2011). A
group of photographers and illustrators filed a related suit in
2010. See Am. Soc'y of Media Photographers, Inc. v. Google Inc., No.
10-2977 (S.D.N.Y. 2010).
---------------------------------------------------------------------------
The parties filed a proposed settlement with the district court on
October 28, 2008. After significant objections from various individual
authors, groups, and foreign governments, the parties filed an amended
settlement agreement on November 13, 2009. Under the terms of the
amended settlement, copyright owners of out-of-print books were
required to ``opt out'' of the settlement or their works could be
scanned, digitized, and exploited by Google through a number of new
business arrangements. These business arrangements included online
access, use of the books in subscription databases, and use of
advertisements in connection with these services. The settlement also
proposed to establish a ``Book Rights Registry'' (the ``Registry'')
that would maintain a database of rights holders and administer
distribution of revenues from exploitation of the scanned books. Google
would provide payments to the Registry on behalf of rights holders and,
in turn, the Registry would distribute the funds to registered rights
holders. If no rights holder came forward to claim the funds after a
certain amount of time, the funds could be used to cover the expense of
searching for copyright owners or donated to literary-based
charities.\11\
---------------------------------------------------------------------------
\11\ See Authors Guild, Inc., 770 F. Supp. 2d at 670-71.
---------------------------------------------------------------------------
The Department of Justice (``DOJ'') filed two statements of
interest in the case on behalf of the United States. DOJ acknowledged
that ``[b]reathing life into millions of works that are now effectively
dormant'' and increasing public access to those works is a ``worthy
objective[ ].'' \12\ At the same time, DOJ expressed concern that the
settlement could conflict with core principles of the Copyright Act and
also confer a ``significant and possibly anticompetitive advantage'' on
Google.\13\
---------------------------------------------------------------------------
\12\ Statement of Interest of the United States of America
Regarding Proposed Amended Settlement Agreement, Authors Guild, Inc.
v. Google, Inc., No. 05-8136 (S.D.N.Y Feb. 4, 2010) at 1, available
at https://www.justice.gov/atr/cases/f255000/255012.pdf.
\13\ Id. at 2.
---------------------------------------------------------------------------
On March 22, 2011, Judge Chin of the United States District Court
for the Southern District of New York rejected the amended settlement
agreement filed in the case.\14\ The opinion acknowledged that ``the
benefits of Google's book project are many.'' \15\ The court, however,
also expressed concern about the potential reach of the parties'
proposal. Ultimately, the court concluded that the proposed settlement
would inappropriately implement a forward-looking business arrangement
granting Google significant rights to exploit entire books without
permission from copyright owners, while at the same time releasing
claims well beyond those presented in the dispute.\16\ The court noted
that the settlement would give Google--and Google alone--the ability to
control the digital commercialization of millions of books as it would
require authors and other rights holders of out-of-print books to ``opt
out'' of the settlement by objecting to the reproduction, distribution,
and display of their works.
---------------------------------------------------------------------------
\14\ See Authors Guild, Inc., 770 F. Supp. 2d 666.
\15\ Id. at 670.
\16\ Id at 677.
---------------------------------------------------------------------------
The court rejected the settlement in part because of the
settlement's treatment of orphan works. The court expressly deferred to
Congress on orphan works-related issues, stating that the ``questions
of who should be entrusted with guardianship over orphan books, under
what terms, and with what safeguards, are matters more appropriately
decided by Congress than through an agreement among private, self-
interested parties.'' \17\ Citing Supreme Court precedent, the court
also affirmed that it is ``Congress's responsibility to adapt the
copyright laws in response to changes in technology.'' \18\ Finally,
the court asserted that the settlement agreement would raise
international concerns and thus for that reason as well, ``the matter
is better left for Congress.'' \19\
---------------------------------------------------------------------------
\17\ Id.
\18\ Id.
\19\ Id. at 678.
---------------------------------------------------------------------------
The Second Circuit recently stayed the case pending Google's appeal
of class certification. On October 4, 2012, the five major publisher
plaintiffs settled with Google. According to public statements about
the settlement, the publisher plaintiffs will be permitted to choose
whether or not to include digitized books in the Google Books
project.\20\ Further details of the settlement have not been made
public. Notably, the settlement does not appear to require formal court
approval because it only resolves the claims of the specific publisher
plaintiffs. The settlement does not affect claims made by the Authors
Guild or non-parties to the lawsuit. Therefore, the settlement would
not address claims over orphan works.
---------------------------------------------------------------------------
\20\ See Statement of the Ass'n of Am. Publishers, Publishers
and Google Reach Settlement (Oct. 4, 2012), available at https://www.publishers.org/press/85/.
---------------------------------------------------------------------------
(2) HathiTrust Litigation
On September 12, 2011, the Authors Guild, along with two foreign
authors' groups and a number of individual
[[Page 64558]]
authors, sued an online digital repository known as the HathiTrust
Digital Library (``HathiTrust'') and its five major university
partners.\21\ The suit challenged HathiTrust's digitization efforts and
its plan to digitize and make available orphan works to faculty,
students, and library patrons (the ``Orphan Works Project''). In
addition to its overarching claim of copyright infringement, the
complaint alleged, inter alia, that the Authors Guild was easily able
to locate several of the authors whose works were deemed orphaned and
digitized by the HathiTrust. Thus, the Authors Guild argued that the
Orphan Works Project was not actually limited to orphan works. The
Authors Guild sought an injunction preventing defendants from ``making
available any so-called orphan work protected by copyright'' and
impoundment of ``all unauthorized digital copies of works protected by
copyright.'' \22\ Shortly thereafter, HathiTrust suspended the Orphan
Works Project indefinitely.
---------------------------------------------------------------------------
\21\ Authors Guild, Inc. v. HathiTrust, No. 11-6351 (S.D.N.Y.
filed Sept. 12, 2011).
\22\ First Am. Compl. at page 28, Authors Guild, Inc. v.
HathiTrust, No. 11-6351 (S.D.N.Y 2011).
---------------------------------------------------------------------------
On July 27, 2012, the parties in Authors Guild, Inc. v. HathiTrust
submitted their final round of briefs connected to their motions for
summary judgment.\23\ The Authors Guild's motion asked the court to
reject the defendants' copyright defenses, including fair use. The
Authors Guild also urged the court to issue an injunction against the
HathiTrust's suspended Orphan Works Project. The Authors Guild
acknowledged in its reply brief that the ``issues raised by orphan
works * * * are important,'' but argued that ``[b]y scanning the books
without authority, Defendants usurp authors' rights to control the
digital reproduction of their work and expose them to security risks
that previously did not exist.'' \24\
---------------------------------------------------------------------------
\23\ A third motion, in support of the HathiTrust, was filed by
the National Federation of the Blind. See Def. Intervenors' Reply in
Supp. of Mot. for Summ. J., Authors Guild, Inc. v. HathiTrust, No.
11-6351 (S.D.N.Y. filed July 27, 2012).
\24\ See Reply Mem. of Law in Further Supp. of Pls.' Mot. for
Summ. J. at 1, 2, Authors Guild, Inc. v. HathiTrust, No. 11-6351
(July 27, 2012).
---------------------------------------------------------------------------
The HathiTrust and its partner libraries argued in their reply
brief that all four factors of a fair use analysis favor the libraries'
activities, even in an environment of rapid technological
advancement.\25\ ``Plaintiffs continue to ask this Court to wait for
Congress to legislate,'' the defendants stated, but ``[w]here, as here,
Congress has not spoken, courts should `take the Copyright Act * * * as
[they] find it,' rather than close off publicly beneficial uses made
possible by a new technology.'' \26\
---------------------------------------------------------------------------
\25\ See Reply Mem. in Supp. of the Libraries' Mot. for Summ. J.
on Fair Use and Lack of Infringement Under Section 106 of the
Copyright Act, Authors Guild, Inc. v. HathiTrust, No. 11-6351
(S.D.N.Y. July 27, 2012).
\26\ Id. at 1 (citations omitted).
---------------------------------------------------------------------------
On October 10, 2012, the district court ruled in favor of the
HathiTrust and its partner libraries on issues relating to
digitization, preservation, searching,\27\ and access for the print-
disabled.\28\ The court found that these activities are largely
transformative and ultimately protected by fair use, further opining
that ``the underlying rationale of copyright law is enhanced'' by the
HathiTrust digital library.\29\ The court did not reach the merits of
the copyright claims with respect to the Orphan Works Project, however,
finding instead that the issue is not ripe for adjudication because the
contours of the Orphan Works Project have changed and the defendants
have suspended the project.\30\
---------------------------------------------------------------------------
\27\ The court took care to note that the searching function did
not reveal any copyrighted material. See Authors Guild, Inc. v.
HathiTrust, No. 11-CV-6351, 2012 WL 4808939 (S.D.N.Y. Oct. 10,
2012).
\28\ See id.
\29\ Id. at *14.
\30\ Id. at *7-8.
---------------------------------------------------------------------------
D. The Role of the Copyright Office and Private Registries
In October 2011, the Register of Copyrights released a two-year
plan of priorities and special projects for the U.S. Copyright Office.
The special projects include several technical endeavors designed to
update the Office's record systems, which may help users to locate a
copyright owner or confirm the suspicion that no such owner exists.
(1) Historic Copyright Records
One such project is the Office's multiyear effort to digitize the
entire inventory of historic copyright records dating back to 1870,
many of which are still relevant in determining the copyright status of
many works. Since 2008, the Office has digitized more than 22 million
of the Office's approximately 60 million historical records. The Office
is also engaged in a variety of investigative endeavors, including
crowd sourcing, to determine how best to make the records searchable.
This task is no small feat because the records are unique and cannot be
destroyed or put at risk during the digitization process. Some
historical records date back nearly to the civil war. They range from
index cards to large documents, and some are written in pencil. Through
this project, the Office has engaged with a number of experts and the
public (through meetings, blogs, and crowd sourcing) to evaluate cost-
effective approaches to metadata capture, public display, and how best
to make the scanned materials publicly available in a meaningful way as
soon as possible.
(2) Upgrades to Copyright Registration and Recordation Systems
Alongside the digitization of the Office's historic records, the
Office is also actively pursuing a comprehensive analysis of its
electronic registration and recordation systems, not only to enhance
the experience for authors and copyright owners, who rely on these
services to secure legal rights, but also to develop a plan for
improving the nature, accuracy, and searchability of the Office's
public databases. The Office is meeting with a diverse range of
business and information technology experts to explore appropriate
technical upgrades and enhancements, including exploring the
feasibility of connecting the Office's database of copyright ownership
records with private sector data to facilitate licensing and other
productive uses of copyrighted works.
Together, these projects lay the foundation necessary to build and
maintain a twenty-first century database of copyright ownership
information that will enhance public access to information and improve
potential users' ability to investigate the copyright status of works,
including the identification and location of copyright owners.
E. Discussion of Legal Issues in Mass Digitization
Outside of litigation, the issue of mass digitization has been
aired largely through the symposia of academic institutions or
professional associations (i.e., bar associations).\31\ To further the
conversations, the Copyright Office published a Preliminary Analysis
and Discussion Document (the ``Analysis'') \32\ in October 2011, in
which it laid out the issues raised by the intersection between
copyright law and the mass digitization of books, including
[[Page 64559]]
some of the issues raised by the Google Books and HathiTrust cases. The
Office identified a number of key legal and policy questions to explore
when assessing mass digitization, including the objectives and public
policy goals of mass digitization projects, the interplay among library
exceptions, fair use, and licensing, and the ability of public and
private actors to work together.
---------------------------------------------------------------------------
\31\ For example, the Berkeley Center for Law and Technology
hosted a symposium entitled Orphan Works and Mass Digitization in
April 2012. Additionally, the Kernochan Center for Law, Media and
the Arts at Columbia Law School, in cooperation with the Copyright
Office, will present a public symposium on November 2, 2012, which
will include discussions of mass digitization in the context of
Section 108.
\32\ United States Copyright Office, Legal Issues in Mass
Digitization: A Preliminary Analysis and Discussion Document (2011),
available at https://www.copyright.gov/docs/massdigitization/USCOMassDigitization_October2011.pdf.
---------------------------------------------------------------------------
In the Analysis, the Office observed that under current law the
issues of mass digitization and orphan works cannot reasonably be
separated from the issue of licensing because the premise of an orphan
works situation is that a good faith user has tried to, or would like
to, locate the copyright owner but cannot. The Office described
existing licensing options (direct licensing and voluntary collective
licensing), as well as two licensing models (extended collective
licensing and statutory licensing) that might operate as potential if
not partial solutions for the orphan works problem, particularly in the
mass digitization context.\33\
---------------------------------------------------------------------------
\33\ In the context of voluntary collective licensing of books,
the most experienced organization is the Copyright Clearance Center
(``CCC''). The CCC was started by publishers in the age of
photocopying and has since evolved to handle certain kinds of
digital licenses. Voluntary collective licensing, however, does not
provide solutions for orphan works where the authors are unknown and
have not joined the collecting society.
---------------------------------------------------------------------------
The Office noted that while the United States has not adopted
extended collective licensing, these regimes exist in a number of
Nordic countries.\34\ Typically, this model operates something like a
class action settlement, in the sense that 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. The
government or a trusted designee administers payments. It is not quite
compulsory licensing in that the parties (rather than the government)
negotiate the rates, but it requires a legislative framework and often
involves some degree of government oversight. Finally, the Office
discussed the potential use of statutory licenses created by Congress.
Statutory licenses provide users with access to certain types of works,
under certain circumstances, in exchange for a statutorily or
administratively set fee. The Office has traditionally viewed statutory
licenses as a mechanism of last resort that must be narrowly tailored
to address a specific failure in a specifically defined market.
---------------------------------------------------------------------------
\34\ See Analysis at App. F (listing countries that follow this
approach and providing an overview of the laws).
---------------------------------------------------------------------------
F. International Developments
Foreign countries are also renewing their focus on the orphan works
problem. The European Union and various other countries have recently
proposed or adopted a number of legislative approaches to the orphan
works issue.
(1) Recent and Proposed Legislation
Like the United States, the European Union has been grappling with
the issue of orphan works for many years. In 2011, the European
Commission issued a draft proposal for an orphan works directive along
with a working paper entitled ``Impact Assessment on the Cross Border
Online Access to Orphan Works.'' \35\ The Commission acknowledged the
difficulties caused by orphan works and noted that a solution in the
European Union was particularly urgent to avoid a ``knowledge gap''
with the United States if the then-pending Google Books Settlement was
approved. The Commission identified several policy options for handling
orphan works and assessed the economic and social impacts of each.
Among the policy options the Commission considered was a statutory
exception, extended collective licensing, and a specific orphan works
license.
---------------------------------------------------------------------------
\35\ European Commission, Commission Staff Working Paper Impact
Assessment on the Cross-Border Online Access to Orphan Works
Accompanying the Proposal for a Directive of the European Parliament
and of the Council on Certain Permitted Uses of Orphan Works, COM
(2011) 289 final (May 24, 2011), available at https://ec.europa.eu/governance/impact/ia_carried_out/docs/ia_2011/sec_2011_0615_en.pdf.
---------------------------------------------------------------------------
The European Council formally approved the proposed orphan works
directive (``Directive'') on October 4, 2012.\36\ The Directive
requires Member States to establish an exception and limitation to the
rights of reproduction and ``making available'' for certain permitted
uses of orphan works. The Directive excludes photographs unless
embedded in other works, and limits the use of orphan works to
``libraries, educational establishments or museums * * * archives, film
or audio heritage institutions and public service broadcasting
organizations'' that are located in Member States and that have public
service missions.\37\ A public organization that falls under the
Directive may partner with a private organization and ``generate
revenues in relation to their use of orphan works'' if that use is
consistent with the public organization's mission.\38\ The private
partner, however, will not be permitted to use the works directly. The
Directive requires a diligent search and provides that once a work is
deemed orphaned in one Member State, it is deemed orphan in all Member
States and ``may be used and accessed'' in all Member States. The
Directive also calls for a single registry to maintain data on all
works deemed orphan. A rights holder who later resurfaces may reclaim
ownership of a work once deemed orphan and claim fair compensation for
the use of the work as provided by individual Member States' laws.
Member States have two years to implement the Directive in national
legislation.
---------------------------------------------------------------------------
\36\ The European Council's approval marked the last step in the
legislative process. See Press Release, Council of the European
Union, Intellectual Property: New EU Rules for Orphan Works (Oct. 4,
2012), available at https://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/intm/132721.pdf.
\37\ See Directive of the European Parliament and of the Council
on Certain Permitted Uses of Orphan Works, Art. 1(1), available at
https://register.consilium.europa.eu/pdf/en/12/pe00/pe00036.en12.pdf.
\38\ Id. at p. 13, ] 21.
---------------------------------------------------------------------------
The European Commission also recently assisted private parties in
negotiating a Memorandum of Understanding (``Memorandum'') to encourage
voluntary collective licensing for ``out-of-commerce'' books and
journals.\39\ ``Out-of-commerce'' works are works that are no longer
commercially available because authors and publishers have chosen not
to publish new editions or sell copies through the customary channels
of commerce. The Memorandum expresses several principles that
libraries, publishers, authors, and their collecting societies should
follow in order to license the digitization and making available of
books or journals that are out-of-commerce. The European Commission
views the Memorandum as complimentary to its legislative proposals for
orphan works, and part of a two-pronged approach to facilitate the
development of digital libraries in Europe.
---------------------------------------------------------------------------
\39\ Memorandum of Understanding, Key Principles of the
Digitsation and Making Available of Out-of-Commerce Works (Sept. 20,
2011), available at https://ec.europa.eu/internal_market/copyright/docs/copyright-infso/20110920-mou_en.pdf.
---------------------------------------------------------------------------
Additionally, the United Kingdom issued proposed legislation \40\
in 2012 that would amend the Copyright, Designs and Patents Act of 1988
to permit the commercial and non-commercial use of orphan works under a
licensing scheme that would include both individual licensing of orphan
works as well as a form of voluntary
[[Page 64560]]
extended collective licensing. The scheme would require a diligent
search, the results of which would be verified by ``an independent
authorising body.'' \41\ The proposal would also establish an orphan
works registry and, if the name of the rights holder is unknown (and
therefore cannot be credited), any licensed use of the work would have
to include a notice that refers back to the registry.\42\ The potential
scheme is described as one in which rights holders will always reserve
the right to opt out.\43\
---------------------------------------------------------------------------
\40\ Enterprise and Regulatory Reform Bill, 2012-13, (HC Bill
61), cl. 59, available at https://www.publications.parliament.uk/pa/bills/cbill/2012-;2013/0061/cbill--2012-20130061--en--1.htm.
\41\ See Government Policy Statement: Consultation on
Modernising Copyright, at 7 (July 2012), available at https://www.ipo.gov.uk/response-2011-copyright.pdf.
\42\ Id. at 8.
\43\ See id. at 10; see also The BIS Blog, Copyright Reform:
Orphan Works and Extended Collective Licensing, Aug. 14, 2012,
available at https://blogs.bis.gov.uk/blog/2012/08/14/copyright-reform-orphan-works-and-extended-collective-licensing (``The
Government's proposals for ECL are not compulsory nor can they be
imposed on a sector. It would be up to a collecting society to apply
to use the system and every rights holder would retain the capacity
to opt out.'').
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(2) Existing Laws
Several countries already have adopted forms of orphan works
solutions in national law. The Canadian Copyright Act (Section 77)
permits users to file applications with the Copyright Board of Canada
for the use of certain types of orphan works on a case-by-case basis.
If an applicant demonstrates that it made a reasonable effort to locate
the rights holder and the rights holder cannot be located, the Board
will approve the request and issue a conditional non-exclusive
license.\44\ Pursuant to the Canada Copyright Act, the Copyright Board
may issue licenses permitting uses including reproduction, publication,
performance, and distribution. In June 2012, Canada passed amendments
to its Copyright Bill that included an expansion of the exception for
nonprofit organizations acting for the benefit of persons with
perceptual disabilities to cover cross-border exchanges of orphan works
that have been translated into a print disabled format.\45\ The 2006
Orphan Works Report identified some of the Canadian system's burdens,
and several studies have noted that it is rarely used.\46\
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\44\ Copyright Act, R.S.C., c. C-42, s. 77 (1985) (Can.),
available at https://laws.justice.gc.ca/PDF/C-42.pdf.
\45\ Id. at s. 32.
\46\ Orphan Works Report at 82-83.
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France passed a law in February 2012 that would make it easier to
digitize twentieth century out-of-commerce books, implicating books
published in France before January 1, 2001, which are not currently
being commercially distributed or published either in print or digital
formats.\47\ The scheme is conducted on an opt-out basis and, if an
author chooses not to exploit the work within six months of the
inscription of the book in the register managed by the French National
Library, the digital rights are transferred to a designated collective
management organization.\48\ If the copyright holder fails to claim
rights to works that have been transferred to a designated collective
management organization after ten years, libraries and archives will be
allowed, with some exceptions, to digitize and provide access to the
digitized works free of charge so long as the institution does not
pursue a commercial or economic advantage.\49\
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\47\ See Loi n[deg] 2012-287 du 1er mars 2012 relative [agrave]
l'exploitation num[eacute]rique des livres indisponibles du xxe
si[egrave]cle [Law Number 2012-287 of March 1, 2012, on the Digital
Exploitation of Unavailable Books] Art. 134-1 (2012) (Fr.) (``Law
2012-287''), available at https://www.legifrance.gouv.fr/affichTexte.do;jsessionid=4D8B77A47AA211DE6E336FD22AA18F60.tpdjo09v--
2?cidTexte=JORFTEXT000025422700&dateTexte=20121016; see also
International Federation of Reproduction Rights Organisations,
French Parliament Passed Law on Out of Commerce Works on 22nd
February 2012, (March 3, 2012), available at https://www.ifrro.org/content/french-parliament-passed-law-out-commerce-works-22nd-february-2012.
\48\ See Law Number 2012-287, Art. 134-4.
\49\ See id., Art. 134-8.
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Hungary amended its Copyright Act in 2009 to permit the use of
orphan works under certain circumstances. Under the amended Act, the
Hungarian Patent Office has the right to grant licenses for certain
uses of orphan works to applicants who carry out a documented diligent
search and pay compensation for such use.\50\ These licenses are
limited to the territory of Hungary. Japan, Korea, and India have
adopted either compulsory or government licensing for some orphan
works.\51\
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\50\ See Government Regulation on the Detailed Rules Related to
the Licensing of Certain Use of Orphan Works, Arts. 2(1), 2(2), 3,
Decree 100/2009, V. 8 (Hun.), available at https://www.hipo.gov.hu/English/jogforras/100_2009.pdf; see also Mih[aacute]ly Ficsor, How
to Deal with Orphan Works in the Digital World? An Introduction to
the New Hungarian Legislation on Orphan Works (European Parliament
Committee on Legal Affairs, eds. 2009), available at https://www.europarl.europa.eu/RegData/etudes/divers/juri/2009/419607/IPOL-JURI_DV(2009)419607--EN.pdf.
\51\ See Chosakuken-Ho [Copyright Law], Law No. 48 of 1970,
2009, art. 67, 74 (Japan), unofficial translation available at
https://www.cric.or.jp/cric_e/clj/clj.html); see also Copyright Act
of Korea, No. 9785 (2009) (S. Kor.); Copyright (Amendment) Act,
2012, at para. 17 (2012) (India), available at https://copyright.gov.in/Documents/CRACT_AMNDMNT_2012.pdf.
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Denmark and Finland both adopted extended collective licensing
regimes, which allow collective licensing organizations to license
numerous works within a specific field of use, including works owned by
rights holders who are not members of the organization and orphan
works.\52\
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\52\ See Consolidated Act on Copyright 2010, No. 202, Art. 50-51
(2010) (Den.); see also Copyright Act, No. 404, Sec. Sec. 13-14
(2010) (Fin.).
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II. Subject of Inquiry
The Copyright Office seeks comments regarding the current state of
play for orphan works, including what has changed in the legal and
business environments that might be relevant to a resolution of the
problem and what additional legislative, regulatory, or voluntary
solutions deserve deliberation at this time. The Office has posed two
questions below. In responding to these questions, a party may wish to
discuss a number of relevant topics, including for example: The merits
of limiting remedies; the interplay between orphan works and fair use,
section 108, section 121, or other exceptions and limitations; the role
of licensing; the types of orphan works that should be implicated; the
types of users who should benefit; the practical or legal hurdles to
forming or utilizing registries; international implications; and the
relative importance of the Register's plans to improve the quality and
searchability of Copyright Office records. The Office requests that
responding parties separately address each of the questions for which a
response is submitted and provide as much specificity as possible.
1. Orphan Works on an Occasional or Case-by-Case Basis
With respect to the occasional or isolated use of an orphan work,
how has the legal landscape or legal thinking evolved in the past four
years? The 2008 proposed legislation included several key components:
(a) A good faith, reasonably diligent search for the copyright owner;
(b) attribution to the author and copyright owner, if possible and
appropriate under the circumstances; and (c) a limitation on remedies
that would be available if the user proves that he or she conducted a
reasonably diligent search. Good faith users were expected to consult
the Copyright Office Web site for practices proffered by copyright
owners and users alike under the direction and coordination of the
Register of Copyrights. The legislation included special provisions for
certain noncommercial actors using orphan works in a noncommercial
manner, as a further attempt to reduce liability for those perceived to
be most risk-averse under current law. Moreover, the
[[Page 64561]]
legislation would have applied to all kinds of copyrighted works,
published or unpublished, from photographs to manuscripts to music and
books. Please comment on the continued viability of the above framework
in the case of occasional uses of orphan works. If there are other
possible approaches, including approaches that might best be described
as interim approaches, please explain the benefits and supporting legal
authority in sufficient detail.
2. Orphan Works in the Context of Mass Digitization
The Office's Orphan Works Report did not analyze the issue of mass
digitization in detail, and the subsequent 2008 proposed legislation
did not squarely address the possibility of systematic or en masse
copying, display, or distribution. Please comment on potential orphan
works solutions in the context of mass digitization. How should mass
digitization be defined, what are the goals and what, therefore, is an
appropriate legal framework that is fair to authors and copyright
owners as well as good faith users? What other possible solutions for
mass digitization projects should be considered?
If there are any pertinent issues not discussed above, the Office
encourages interested parties to raise those matters in their comments.
In addition, the Office is considering and hereby provides notice that
it may convene one or more roundtables or formal hearings on the
matters raised above in 2013. The Office may also publish one or more
additional Notices of Inquiry.
Dated: October 17, 2012.
Maria A. Pallante,
Register of Copyrights.
[FR Doc. 2012-25932 Filed 10-19-12; 8:45 am]
BILLING CODE 1410-30-P
