Copyright Office Calls for Comments on Fixing Orphan Works Problem
The U.S. Copyright Office called for comments on orphan works, in a notice scheduled for Federal Register publication Monday (http://xrl.us/bnu3xv). Orphan works, or copyrighted content without a locatable copyright holder, “are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace,” the notice said. In the past, the Copyright Office and Congress have attempted to address orphan works through legislation, which hasn’t passed (WID Sept 30/08 p4).
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In an attempt to address the problem again, the Copyright Office is asking for suggestions about the viability of previously considered systems, which would require individuals who want to use orphan works to conduct a “reasonably diligent search for the copyright owner” and place limits on the remedies copyright holders can seek if their work is used by individuals who conducted a diligent search. For the first time, and in light of recent litigation around the issue of the digitization of orphan works, the Copyright Office is asking for suggestions regarding the definition and legal framework of the mass digitization of orphan works.
Digitization of orphan works has been a focus of litigation, the Copyright Office said, citing the 2005 case against Google Books (WID Oct 29/08 p1) and a 2011 case against universities and HathiTrust Digital Library (WID Oct 12 p1). The notice pointed to a preliminary analysis the office did in October 2011 that laid out different licensing models for orphan works, including extended collective licensing, in which copyright holders and user representatives would negotiate licensing terms and the government would administer payments; and statutory licensing, which would “provide users with access to certain types of works, under certain circumstances, in exchange for a statutorily or administratively set fee,” according to the notice.
Digitization of “just about any work,” including orphan works, is fair use if it’s “just the conversion of a work into a digital format,” Public Knowledge Vice President of Legal Affairs Sherwin Siy told us. “As the HathiTrust case just showed us, using that stored digital information for indexing and cataloging is also a fair use,” he said, as is providing access for the print-disabled. If digitization were to include distributing or reproducing those works rather than just converting and storing them, he said, “we'd need to look more carefully at what sort of work it is and how it’s being used.”
Photographs with no locatable copyright holder are “a significant part of the problem, if not the lion’s share,” the Copyright Office wrote. This is the case, the filing said, because photographs “frequently lack or may become divorced from ownership information.” Eugene Mopsik, executive director of the American Society of Media Photographers, agreed and told us that a large part of the problem with orphan photos is “the ease with which visual works can be stripped of their identifying information."
Another look at orphan works is “certainly not unexpected,” Mopsik said. His group has submitted comments on the issue in the past (WID Feb 19/08 p3). Any orphan works system should require diligent search, he said, and notice of use on the part of the content user, which gives copyright holders a way of identifying where their work has been used to seek reasonable compensation. Mopsik suggested creating an orphan work database with the Picture Licensing Universal System (PLUS), a nonprofit group that maintains a searchable registry of images and corresponding identifying metadata submitted by creators. If such a database exists, Mopsik said, photography software could be built to include a step that submits photographs to the orphan work database automatically when a photographer submits work for copyright registration. This is something that’s been discussed before, he said, but “it’s been difficult getting the [application programming interface] from the Copyright Office to make that happen."
Photographer John Harrington also pointed to PLUS in a blog post about the Copyright Office’s notice (http://xrl.us/bnu3xt). Harrington supported “a neutral not for profit registry” that is “not subject to a takeover or buyout by a Google or a stock agency.” Harrington said there also needs to be “protections written into the law so that someone doesn’t create a stock photo agency of images for which a ‘diligent search’ has been done and documented” and then sell those orphan images. “If this is not expressly forbidden,” he said, there will be a system where rightsholders “can’t stop it ... [and] could find themselves competing to license their own work against that of an organization set up to aggregate orphan works.”
Comments on the Copyright Office notice are due Jan. 4, replies Feb. 4. They can be submitted to www.copyright.gov/orphan/comment-submission.