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Proposed Legislation on Orphan Works:

Solving the Problem or Escalating the Crisis?

Denise Troll CoveyCarnegie Mellon University Libraries

EDUCAUSE Live! webcast – July 6, 2006

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U.S. Copyright Office Notice of Inquiry

• Are orphan works “being needlessly removed from access & their dissemination inhibited”?

• Are “inappropriate burdens” imposed on users?

• Should something be done?

0%

25%

50%

75%

100%

721 Initialcomments

146 Replycomments

Experience No

Yes NIMBY

January 26, 2005

May 9 March 25

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Public roundtables Topics

Definition

• Registries

Consequences

Reclaiming

• International

0

5

10

15

20

25

30

35

DC CA

Illustrators

Photographers

Authors

Film

Music

Book publishers

Rights organizations

Other

Cultural heritage

2 days

1 day

July & August 2005

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Viable definition drives solution

“Overloading the boat”

Case–by–case Hybrids Categorical

• © owner cannot be identified

• © owner cannot be found

• © owner does not respond

• © owner uncertain of ownership– Grants or denies permission anyway

Publishers, photographers, authors, illustrators, film, music

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Viable solution drives definition

• Meet certain threshold requirements = orphan – Age of work?

– Print status?

– Non–profit use only?

– Registration to opt out?

Case–by–case Hybrids Categorical

“Don’t embroider the existing situation.

Do something to benefit the citizenry.”

Libraries, archives, museums, Creative Commons

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Consequences

• How long does an orphan designation endure?– Until the © owner comes forward

– In perpetuity

• What use does an it enable?– A particular use by a particular user

– Any use by any user

• To what does it apply? – The work

– The use

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What should be done?

72%

90%

0% 25% 50% 75% 100%

721 Initialcomments

146 Replycomments

Nothing

Limited remedies

Public domain

No change Limited remedies Public domain

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Reclaiming

• Different remedies for different users & uses?

• How compensate the © owner? – Issues with case–by–case approach

• Who proves reasonableness?• No attorney fees? No statutory damages? • Cap? Royalty? Who & how determine fee?• How budget for large projects?

– Issue with categorical approaches• Take–down option would constitute free use• Default fee could be too low

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Recommended legislation

• Each potential user must perform a “good faith, reasonably diligent search to locate the owner”– If search is unsuccessful, user may use the work

with attribution to author & © owner if appropriate

– If © owner comes forward & user’s search is found to be reasonable, then limited remedies apply

• Limited monetary relief with exception

• Limited injunctive relief with qualifiers

• Limited remedies terminate after 10 years to “allow” examination

February 2005

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HR 5439 Orphan Works Act 2006

• Adopts recommendations with few changes

• Requires Copyright Office to

– Receive, maintain, & make publicly available

information to guide searches

– Study effects & report by Dec 12, 2014

– Conduct public inquiry on remedies for small

copyright claims & report by June 1, 2009

• Addresses cases of immunity

May 22, 2006

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Concern: begging the question

• Notice of Inquiry invited definitions, but assumed definition as owner can’t be located

• Report contains conflicting definitions– Parent of the work is unlocatable or unavailable

• Locate (find) – onus is on user• Available (accessible) – onus is on © owner

• Recommendation & HR 5439 adopt definition assumed in Notice of Inquiry

– Necessitates reasonable effort approach

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Occurrences of “reasonable”Section 2 Limitations on remedies No.

(a)(1) Conditions 4

(a)(2)(B) Requirements for reasonably diligent search

8

(a)(2)(C) Information to guide searches 4

(b)(1) Monetary relief 4

(b)(2) Injunctive relief 4

(b)(3) Reasonable compensation 3

TOTAL 27

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Reasonably diligent search 8

Reasonable compensation 6

Reasonable under the circumstances 4

Reasonably available expert assistance 2

Reasonably available technology 2

Reasonable degree of certainty 1

Reasonably available to users 1

Reasonable attorney’s fee 1

Reasonable willing buyer 1

Reasonable willing seller 1

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Attribution

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Concern: ambiguity • Definition or tautology?

– “A search to locate the owner of an infringed copyright in a work is ‘reasonably diligent’ only if it includes steps that are reasonable under the circumstances . . . .”

• Guideline or tongue twister?– “A reasonably diligent search includes the use

of reasonably available expert assistance & reasonably available technology, which may include, if reasonable under the circumstances, resources for which a charge or subscription fee is imposed.”

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Who determines . . .

• If search was, or compensation is, reasonable?– Under what circumstances?

• If expert assistance or technology is reasonably available to users?– Who identifies expert assistance & technology?

• If buyer & seller are reasonably willing?

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How respond to uncertainty?

Two schools of thought:

– Risk is reduced by limited remedies

• If search is found to be reasonable

– Risk will have chilling effect

• Orphan Works Act will

go the route of fair use

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Concern: passing the buck

• HR 5439 passes the buck on removing obstacles to locating © owners to industries & associations – No incentive to develop tools (no fee, small claims)

– Difficulty & cost of developing tools

– Without tools, limited incentive for © owners to make themselves “known & accessible”

• HR 5439 removes significant obstacle to use in return for significant user investment

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Random, feasibility study

Fine & rare books study

Publisher Title Publisher Title

Permission granted $228 $197 $251 $65

Permission granted plus not located (OW)

$129 $109 $147 $54

Permission granted plus not located plus no response

$81 $67 $138 $50

Concern: cost & scale

Few titles per publisher

Many titles per publisher

Transaction costs per book

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Concern: burden

• No burden on © owners – Retain right to waste user investment– No recognition that © owners can appreciate use

or free ride on markets created by users

• Significant burden on industries & associations

• Some burden on Copyright Office – Not a one–stop–shop for users

• Tremendous burden on users– Users pay cost of conducting & documenting

searches + likely the cost of tool development

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Concern: missed opportunities

• Reconsider the © term – Federal government knew that the 1976 CTEA

would exacerbate the orphan works problem

• Provide solution commensurate with the problem – Likely that orphan works

will be created at a faster rate than they can be preserved, disseminated, & used

0

1,000,000

2,000,000

3,000,000

4,000,000

5,000,000

6,000,000

1923-1929

1930-1939

1940-1949

1950-1959

1960-1969

1970-1979

1980-1989

1990-1999

Books published in English in the United States (WorldCat)Books for which copyright owner cannot be locatedBooks for which presumed copyright owner does not respondBooks out-of-print

Estimates based on results

of random sample feasibility study

conducted at Carnegie Mellon

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Commendable

• Public process & sequence of events

• Legislation likely to enable all types of uses

of all types of works by all types of users

under certain conditions

• Better than expected,

but not as good as it gets

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M I S S I N G

Library Coalition for Identified Missing Parents & Recovery of Apparently Neglected Children

1-800-SHARE-IDwww.missingparents.org

Publisher ALast known addressReasonable search

Publisher BLast known addressReasonable search

Author CLast known addressReasonable search

Estate DLast known addressReasonable search

How leverage the opportunity?

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Orphan Works Act of 2006

would take effect June 1, 2008

© Denise Troll Coveytroll@andrew.cmu.edu

First right of publication: EDUCAUSE

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