1 proposed legislation on orphan works: solving the problem or escalating the crisis? denise troll...

1

Proposed Legislation on Orphan Works:

Solving the Problem or Escalating the Crisis?

Denise Troll CoveyCarnegie Mellon University Libraries

EDUCAUSE Live! webcast – July 6, 2006

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

27

Attribution

14

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.”

15

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?

16

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

17

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

18

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

19

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

20

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

22

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

23

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?

24

Orphan Works Act of 2006

would take effect June 1, 2008

© Denise Troll Coveytroll@andrew.cmu.edu

First right of publication: EDUCAUSE

Images from stock.xchng