[x-pubpol] USA: Public Knowledge on Orphan Works

[Joly MacFie]

http://www.publicknowledge.org/blog/pk-calls-simple-and-usable-solutions-problem-

PK calls for simple and usable solutions to the problem of orphan works

By Rashmi Rangnath  | March 07, 2013

Among the many valuable collections that the Library of Congress holds
is a vast collection of old newspapers. The Library explains [1] that
digitizing these collections can provide new and efficient tools for
researchers. These newspapers offer a wealth of information on topics
such as “the Great Depression, American perspectives on the rise of
Hitler and World War II, post-World War I and immigrant communities in
America, the assassination of President John F. Kennedy, community
views on the Civil Rights Act of 1968, to name a few.” These
newspapers and scores of other works cannot be publicly disseminated
without permission from their copyright owners, who are often
unlocatable. These works are called orphan works. The Copyright Office
is conducting an inquiry [2] into possible solutions to the problem of
orphan works. We filed reply comments [3] in that inquiry yesterday.

For those unfamiliar with the problem of orphan works and its history,
here’s some background: Orphan works are copyrighted works whose
owners cannot be found. Because these works are still under copyright,
subsequent users cannot use these works without the owner’s
permission. In 2006, the Copyright Office published its first report
on orphan works [4] recommending that a user who searched diligently
for the owner be permitted to use the work. If the owner emerged after
the use began, she would be entitled to a reasonable compensation. In
some circumstances, a court could require a user to stop the use. This
proposal formed the basis of bills introduced in Congress in 2006 and
2008. However, these bills failed to pass.

Last year the Copyright Office restarted the debate on orphan works by
issuing a call to the public to comment on possible solutions. After
an initial round of comments, in which we also provided some thoughts
[5], the Office called for replies. Yesterday, we filed our reply.

In our filing we argue that solutions to the problem of orphan works
can be simple and very practical. Yet to achieve that goal, policy
makers will have to maintain their focus on orphan works and not be
tempted to solve larger systemic problems with the copyright
generally.

In keeping with that approach, we explain that any new orphan works
solution should keep requirements to search for copyright owners clear
and simple. Users must not be required to compensate multiple parties
in addition to the owner. For instance, if the owner cannot be located
the user should not have to compensate the several artists involved in
the creation of a work. Imposing such a requirement would lead to
problems that proponents of this solution might not have thought about
or intended.

Similarly, a simple and usable solution should facilitate digitization
efforts. These efforts provide many benefits to the public including
preservation of valuable works, indexing so that researchers easily
search for relevant materials, and public access to collections of
materials. In order for solutions to be effective, they have to
recognize that not all uses of digitized material deserve the same
treatment. Digitizing for preservation and indexing are generally fair
uses and may not require a separate orphan works solution.

Providing public access to digitized material, on the other hand,
might not always be a fair use and might require a different solution.
In devising such a solution, policy makers must recognize the sheer
difficulty of searching for the owners of vast numbers of works in a
particular collection. Consequently, they could call for lower search
obligations on the part of digitizers. The law could balance this
lower search standard with other measures to protect owners. For
example, it could provide emerging owners with a right to require the
digitizer to take down his content.

These are initial suggestions. The orphan works inquiry will benefit
from a robust debate among all affected constituencies. In the end, we
hope that the importance of the public’s ability to access valuable
pieces of its heritage will guide solutions. If it does, the Library
of Congress will be able to digitize and make publicly available its
vast and valuable collection of works and all of us will be the better
for it.

[1]  http://www.copyright.gov/orphan/comments/noi_10222012/Library-of-Congress.pdf
(page 16)
[2]  http://www.copyright.gov/orphan/
[3]  http://publicknowledge.org/files/PK-EFF_Orphan_works_reply_comments.pdf
[4]  http://www.copyright.gov/orphan/orphan-report-full.pdf
[5] http://www.copyright.gov/orphan/comments/noi_10222012/Public-Knowledge-and-Electronic-Frontier-Foundation.pdf


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