?Orphan Works? are copyrighted works ? books, music, records, films, etc ? whose owner cannot be located. Works can become ?orphaned? for a number of reasons: the owner did not register the work, the owner sold rights in the work and did not register the transfer, the owner died and his heirs cannot be found ? the list goes on. Very often, orphan works become obscure no matter how valuable the material contained in them may be. No future creator is willing to use the orphan work for fear that he/she will have to pay a huge amount of money in damages if the owner emerges.
An understanding of the magnitude of the Orphan Works problem can by gained by reviewing the following studies and comments:
- NPR study on how records become inaccessible because companies will not reissue records.
- Center for Public Domain, Duke Law School?s study on orphan films.
- Library Copyright Alliances comment in response to Notice of Inquiry of the Copyright Office.
- College Arts Association?s comment in response to Notice of Inquiry of the Copyright Office.
Since 2005, efforts have been underway to solve the Orphan Works problem. Public Knowledge and many other organizations have proposed that the law should allow use of an orphan work if the user searched for the copyright owner in good faith and with reasonable diligence but failed to find the owner to ask permission. The copyright office recommends a similar solution, differing only in how the remedies would be limited. Groups of copyright holders, mainly photographers, illustrators, graphic artists, and textile designers, have opposed both specific aspects of our proposals and the Copyright Office recommendations and any attempts to permit use without consent. Public Knowledge and other proponents of an orphan works policy are hopeful that, working with other copyright holders, we can work toward a common policy goal of making sure orphan owners are found.
Timeline
· January 26, 2005: The Copyright Office invites comments in response to a notice of inquiry about the Orphan Works issue. 850 comments and reply comments are filed by various organizations and members of the public.
· July 26 & 27, 2005: Public Roundtables of interested parties are conducted by the Copyright Office in Washington D.C.
· August 2, 2005: A Public Roundtable is conducted in Berkeley, California.
· January 2006: The Copyright Office issues its report on Orphan Works.
· March 6, 2006: The House Committee on Judiciary, Subcommittee on Courts, the Internet, and Intellectual Property holds an oversight hearing on the Copyright Office Report on Orphan Works.
· April 6, 2006: The Senate Committee on the Judiciary, Subcommittee on Intellectual Property holds an oversight hearing on Orphan Works.
· May 22, 2006: The Orphan Works Act of 2006 introduced in the House.
· September 11, 2006: The Copyright Modernization Act of 2006 is introduced in the House Judiciary Committee. The bill contains Orphan Works provisions similar to the provisions in the previous bill.
· March 13, 2008: The House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property holds a hearing on Orphan Works. PK and Filmmakers submit written testimony for the record.
· April 24, 2008: S. 2913, The Shawn Bentley Orphan Works Act of 2008, and H.R. 5889, The Orphan Works Act of 2008 are introduced in the Senate and House respectively. The core of the bills is the same while the details vary.
· May 6, 2008: The Register of Copyrights sends a letter to Congress regarding S. 2913 and H.R. 5889. In it she outlines why these bills go farther to address owners? and users? concerns, while indicating where provisions in H.R. 5889 may be seen as burdensome to users. Public Knowledge sends letters to Congress outlining many of the same issues as the Copyright Office letter: Senate letter | House letter.
· May 7, 2008: The House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property holds a markup on the bill and introduces a managers amendment to modify provisions of the bill, with a promise from Chairman Howard Berman (D-CA) to conduct discussions with stake holders to address the more controversial provisions before full Judiciary Committee markup.
Public Knowledge Proposes Solution To Orphan Works Problem
Public Knowledge has made the following policy proposals in order to facilitate the use of orphan works:
· Users should be able to use the work after a reasonably diligent search for the owner.
o A search would be reasonably diligent if it was conducted in good faith with resources and technology reasonably available to the user.
o Reasonableness of the search would have to be determined on a case-by-case basis.
o Industry groups could establish a guideline of best practices for conducting searches.
· The user should provide attribution.
o The user would have to provide attribution to the owner to the extent possible based on the information obtained during the course of the reasonable search.
o The attribution information would have to be updated if more information became available to the user.
· If the owner emerges after the use has commenced, the user?s liability should be limited.
o The user would only be required to pay to an emerging owner a fee capped at a maximum amount; for example: $200.
o A court would not give an injunction against the use of the work.
o In case of web-based uses, the user would not be required to take down the work.
o The owner would not be entitled to attorney?s fees or statutory damages.
· The user should be allowed to continue with the use of the work.
o Uses that commenced before the owner emerged should be allowed to continue. For example, if an author used certain orphan illustrations in his book, he could continue to use these illustrations after the owner emerged. The use would include subsequent editions of the book.
o New uses would require permission from the owner. In the above example, the author would not be able to use the same illustrations in another book.
Public Knowledge believes that the above proposal would facilitate greater uses of orphan works. The capped fee due to an emerging owner would on the one hand acknowledge the owner?s right to compensation, and on the other, reduce the fear of huge damages that currently discourages use of orphan works. Many works which have tremendous historical and cultural value would emerge out of the woodwork and the public would be benefited.
The Copyright Office Proposal
The Copyright Office made its recommendations for a solution to the orphan works problem in its report submitted to Congress on January 31, 2006. While the Copyright Office recommendations are similar to Public Knowledge?s proposals, there are key differences in its approach to remedies. The following are the Copyright Office?s recommendations as to remedies:
· The user should pay a ?reasonable compensation? to the emerging owner. This ?reasonable compensation? should be based on what the user would have agreed to pay to the owner before starting the use.
· The user would not be required to pay any other monetary damages such as actual damages, statutory damages or attorney?s fees.
· A court can ask the user to stop the use if he/she has not changed or ?transformed? the orphan work. For example, if a user simply uses an orphan photo in a film without changing the photo, such use maybe considered non-transformative. If he/she makes a film based on an orphan novel, he/she has transformed the novel and will not be required to stop use.
· Non-commercial users, such as libraries and museums, do not have to pay the ?reasonable compensation? if they agree to stop use when the owner asks them to.
Public Knowledge believes that requiring users to pay a reasonable compensation to emerging owners still retains some uncertainties that discourage use under the present system. A cap on any sum that the user had to pay would have brought more certainty to the system and encouraged more use.
Photographers, Illustrators And Textile Designers Oppose The Copyright Office Recommendations
Most industry organizations representing copyright owners do not seem to be opposed to the solution being proposed by the Copyright Office. The Motion Picture Association of America, Recording Industry Association of America and Association of America Publishers, take the position that an emerging owner should be entitled to a reasonable royalty from the user. They also think that courts should be able to stop ongoing uses.
However, organizations representing photographers, illustrators and textile designers have expressed significant opposition to many aspects of the solution being proposed. They complain that too often their works become separated from ownership information attached to them, even though the owners made every attempt to identify themselves. For example, many advertisers and editorial spreads use photographs without giving proper credit to the photographer. This makes it difficult for a user who sees the photograph in the advertisement or editorial spread to find the owner. These groups claim that the orphan works solution being recommended by the Copyright Office would only exacerbate their problems, by permitting use without payment or compensation.
The Professional Photographers of America (PPA) is opposed to the following specific aspects of the Copyright Office recommendations.
· The proposal that industry groups develop their own search guidelines: If industry groups develop their own search guidelines, multiple sets of guidelines will develop in the same industry and cause confusion and chaos. Instead the Copyright Office should develop these guidelines.
· Reasonable compensation is an inadequate remedy: Most photographers do not have sufficient income to be able to institute a lawsuit against infringers. They would have no incentive to sue to recover the reasonable compensation. Users could get away with not paying the owner anything.
· The exemption for non-profit use is very unfair. For many photographers this exemption would affect their entire market.
The PPA proposes the creation of a small claims court to adjudicate copyright disputes of small value. This would allow small copyright owners to pursue remedies that an expensive law suit in federal court would not have encouraged.
While Public Knowledge sympathizes with concerns raised by photographers, and the other visual artists, we believe that their opposition to a limitation on remedies is misplaced. A user who conducts a good-faith reasonable search to find and pay the owner would have no reason not to do so when the owner emerges. Besides, the limitation on remedies would not be available to a bad faith user.
We understand that photographers and visual artists face considerable difficulties in keeping copyright information attached to their works. As Public Knowledge?s Sarah Zenewicz notes, if all a user has is a photograph with no identifying information, he will have to physically search the 12 million copies in the Copyright Office records! In addition, because registration of a work is not mandatory, that photograph might not be in the office?s records. Because neither groups representing photographers and visual artists nor the Copyright Office is willing to create a visual registry, Public Knowledge has proposed the creation of a visual registry based on the ICANN model for registration of domain names.
In response to Public Knowledge?s proposal, groups representing photographers and other visual artists have also proposed that the Copyright Office create a visual registry of their works. Such a registry should include all works registered so far and all works to be registered in future. A visual registry would allow users to search for owners and reduce chances of works being orphaned. However, none of these groups are willing to create a voluntary visual registry of their own. The visual artists claim that they do not have the resources to create their own visual registry.
Public Knowledge Proposes Creation Of Visual Registry Based On The DNS Model
Photographers and visual artists have said that a large part of their objection with an orphan works solution is that it exacerbates visual artists? problem of being disassociated with their works. A visual registry for copyrighted works would help users locate owners and prevent their works from being orphaned. Some visual artists groups claim that any orphan works legislation should not proceed without creation of such a registry. However, these groups are not willing to create such a registry for the benefit of their constituencies, and unfortunately, the keeper of the copyright registry, the Copyright Office, has also expressed its unwillingness to create a digital visual registry. To solve this deadlock, Public Knowledge has proposed the creation of a visual registry loosely based on the Domain Name System (DNS) for registration of domain names.
The Domain Name System allows for the accreditation of individuals or companies to register domain names on the condition that they abide by a set of rules. These registrars share and maintain a database containing information about registrants. This database is open to the public. If the company goes out of business, it is required to hand over the database to a new service offering registration.
Public Knowledge?s proposal for creation of a visual registry is as follows:
· The Copyright Office should accredit registries for a renewable term to act as a database and search engine for visual works.
· Each visual registry must be a freely searchable database of visual works such as photographs, illustrations, textiles, paintings and drawings. These databases must also be open and machine readable.
· The registry should act as an intermediary between the copyright owner and the Copyright Office and facilitate registration of visual works.
· Each visual work must have with it data that keeps it associated to the work?s owner and Copyright Office registration number.
· The search engine should be freely accessible to the public and should include image recognition search ability.
· The public should only be allowed to view lower resolution images to avoid the danger of the registry being used to aid in infringement.
· After expiration of the term, the records in the database should revert to the Copyright Office.
Additional Resources
