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Orphan Works and Mass Digitization (Notice of Inquiry)

Orphan Works and Mass Digitization (Notice of Inquiry)

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From Federal Register (Monday, October 22, 2012)
From Federal Register (Monday, October 22, 2012)

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64555
Federal Register
/Vol. 77, No. 204/Monday, October 22, 2012/Notices
1
See
United States Copyright Office, Report onOrphan Works (2006) (‘‘Orphan Works Report’’ or‘‘Report,’’ at 1,
2
The Copyright Act, 17 U.S.C. §101
et seq.,
includes several exceptions and limitations thatwould allow use of orphan works under certaincircumstances, such as §107 (fair use), §108(h) (use by libraries during the last twenty years of thecopyright term), and §115(b) (statutory license todistribute phonorecords). The Office concluded inits Orphan Works Report, however, that existingprovisions would not address many orphan workssituations.
See
Orphan Works Report at 7.
will be distributed on or about January 1, 2013.This notice is issued pursuant to 42U.S.C. 2996f(f). Comments andrecommendations concerning potentialgrantees are invited, and should bedelivered to LSC within thirty (30) daysfrom the date of publication of thisnotice.
Victor M. Fortuno,
Vice President & General Counsel.
[FR Doc. 2012–25948 Filed 10–19–12; 8:45 am]
BILLING CODE 7050–01–P
LIBRARY OF CONGRESSCopyright Office
[Docket No. 2012–12]
Orphan Works and Mass Digitization
AGENCY
:
Copyright Office, Library of Congress.
ACTION
:
Notice of inquiry.
SUMMARY
:
The U.S. Copyright Office isreviewing the problem of orphan worksunder U.S. copyright law incontinuation of its previous work on thesubject and in order to advise Congressas to possible next steps for the UnitedStates. The Office has long shared theconcern with many in the copyrightcommunity that the uncertaintysurrounding the ownership status of orphan works does not serve theobjectives of the copyright system. Forgood faith users, orphan works are afrustration, a liability risk, and a majorcause of gridlock in the digitalmarketplace. The issue is not containedto the United States. Indeed, in recentmonths, the European Commission hasadopted measures that would begin toresolve the issue in certain contexts anda number of foreign governments arereviewing or proposing solutions. TheCopyright Office seeks commentsregarding the current state of play fororphan works. It is interested in whathas changed in the legal and businessenvironments during the past few yearsthat might be relevant to a resolution of the problem and what additionallegislative, regulatory, or voluntarysolutions deserve deliberation. This is ageneral inquiry and the Office willlikely publish additional notices on thistopic.
DATES
:
Comments are due by 5:00 p.m.EST on January 4, 2013. Replycomments are due by 5:00 p.m. EST onFebruary 4, 2013.
ADDRESSES
:
All comments shall besubmitted electronically. A commentpage containing a comment form isposted on the Copyright Office Web siteat
The Web siteinterface requires commenting parties tocomplete a form specifying name andorganization, as applicable, and toupload comments as an attachment viaa browser button. To meet accessibilitystandards, commenting parties mustupload comments in a single file not toexceed six megabytes (‘‘MB’’) in one of the following formats: the AdobePortable Document File (‘‘PDF’’) formatthat contains searchable, accessible text(not an image); Microsoft Word;WordPerfect; Rich Text Format (‘‘RTF’’);or ASCII text file format (not a scanneddocument). The form and face of thecomments must include both the nameof the submitter and organization. TheCopyright Office will post all commentspublicly on the Copyright Office’s Website exactly as they are received, alongwith names and organizations. If electronic submission of comments isnot feasible, please contact theCopyright Office at 202–707–8350 forspecial instructions.
FOR FURTHER INFORMATION CONTACT
:
Karyn Temple Claggett, Senior Counsel,Office of Policy and InternationalAffairs, by email at
orCatherine Rowland, Senior Counsel,Office of Policy and InternationalAffairs, by email at
or contact the Copyright Office bytelephone, at 202–707–8350.
SUPPLEMENTARY INFORMATION
:
I. Background
An ‘‘orphan work’’ is an original workof authorship for which a good faith,prospective user cannot readily identifyand/or locate the copyright owner(s) ina situation where permission from thecopyright owner(s) is necessary as amatter of law.
1
Under current law,anyone who uses an orphan workwithout permission runs the risk thatthe copyright owner(s) may bring aninfringement lawsuit for substantialdamages, attorneys’ fees, and/orinjunctive relief unless a specificexception or limitation to copyrightapplies.
2
In such a situation, aproductive and beneficial use of thework may be inhibited—not because thecopyright owner has asserted hisexclusive rights in the work, or becausethe user and owner cannot agree on theterms of a license—but merely becausethe user cannot identify and/or locatethe owner and therefore cannotdetermine whether, or under whatconditions, he or she may make use of the work. This outcome is difficult if notimpossible to reconcile with theobjectives of the copyright system andmay unduly restrict access to millions of works that might otherwise be availableto the public (
e.g.
, for use in research,education, mainstream books, ordocumentary films). Accordingly,finding a fair solution to the orphanworks problem remains a major goal of Congress and a top priority for theCopyright Office.
A. 2006 Report on Orphan Works
The Copyright Office published itsOrphan Works Report (‘‘Report’’) in January 2006, after conducting acomprehensive study at the request of Congress. The Report documented theexperiences of users who are unable tofind copyright owners, the kinds of works at issue, and the kinds of projectsthat may be forestalled. It analyzed thelegal issues, including the application of statutory damages in the orphan workscontext, and discussed a variety of possible solutions. In preparing theReport, the Office conducted anextensive public outreach process,including a series of roundtables in NewYork City and Washington, DC and apublic comment period that yieldedover 850 written comments from avariety of stakeholders. In short, theOffice concluded that the problem of orphan works is pervasive; it affects a broad cross-section of stakeholdersincluding members of the generalpublic, archives, publishers, andfilmmakers.The orphan works problem wasexacerbated by a series of changes inU.S. copyright law over the past thirty-plus years. These changes slowly butsurely relaxed the obligations of copyright owners to assert and managetheir rights and removed formalities inthe law that had served in part toprovide users with readily accessiblecopyright information. Significantamong those changes were theelimination of the registration andnotice requirements, which resulted inless accurate and incomplete identifyinginformation on works, and theautomatic renewal of copyrighted worksthat were registered before the effective
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64556
Federal Register
/Vol. 77, No. 204/Monday, October 22, 2012/Notices
3
These changes, as well as other changes in the1976 Act and in the Berne ConventionImplementation Act of 1988, were important stepstoward harmonizing U.S. copyright law withinternational treaties.
4
Letter of Marybeth Peters, Register of Copyrights, U.S. Copyright Office (Sept. 25, 2008),
5
See
Orphan Works Report at 93–120.
6
Id.
at 108–10.
7
Id.
at 115–21.
8
Proposed bills included: The Shawn BentleyOrphan Works Act of 2008, S. 2913, 110th Cong.(2008), which was passed by the Senate; the OrphanWorks Act of 2008, H.R. 5889, 110th Cong. (2008);and the Orphan Works Act of 2006, H.R. 5439,109th Cong. (2006).
9
See
H.R. 5889, at Section 4(b)(1) (delayingeffective date of legislation for pictorial, graphic,and sculptural works until January 2013 or theCopyright Office could confirm the availability of searchable databases);
see also
S. 2913, at Section2 (delaying effective date of entire legislation until January 2013 or the Copyright Office could confirmthe availability of searchable databases for certainpictorial, graphic, and sculptural works).
date of the 1976 Copyright Act.
3
 Subsequent amendments, such as theSonny Bono Copyright Term ExtensionAct of 2008, extended the duration of copyright and increased the likelihoodthat some copyright owners would become unlocatable. To be clear,Congress amended the law for soundreasons, primarily to protect authorsfrom technical traps in the law and toensure U. S. compliance withinternational conventions. However,‘‘the net result of these amendments has been that more and more copyrightowners may go missing.’’
4
 As reflected in the Report, all kinds of works are potentially at issue, frommusic to books to film clips. That said,the Report also reflects that a significantpercentage of the problem, if not thelion’s share, involves orphanphotographs. Photographs areparticularly challenging because theyaffect a vast variety of images, fromhistorically important archivalphotographs residing in archives tocontemporary photographs for whichthere may or may not be a livingcopyright owner. Photographs of allkinds also frequently lack or may become divorced from ownershipinformation; that is, no label or captionis affixed to the photographsthemselves. As a result, potential usersof photographic works often lack themost basic information to begin asearch. The Office received manycomments focused on the difficulty of obtaining information about the authoror copyright owner of individualphotographs, and the numeroussituations where photographs could not be used because the potential user couldnot discern a search path, let aloneownership.After reviewing a number of possiblelegislative solutions, the Officerecommended a limitation on remedies,with some caveats. In general, the Officerecommended that Congress amend theCopyright Act to limit the remediesavailable against good faith users of orphan works after the user hadperformed a ‘‘reasonably diligentsearch’’ for the owner of that work andconditional upon the user providingattribution to the author and owner of the work wherever possible.
5
Notably,the Office did not at this early stagerecommend specific statutory orregulatory guidelines for determining areasonably diligent search, but‘‘favor[ed] the development of guidelines or even binding criteria’’ byusers and stakeholders.
6
If a usersatisfied the statutory requirements, theOffice recommended that Congress limitthe remedies that the copyright ownercould seek against the good faith user of an orphan work to injunctive relief and‘‘reasonable compensation’’ for the useof the work.
7
The Office alsorecommended a ‘‘take-down’’ option forcertain noncommercial users engaged innoncommercial activities.
B. 2008 Proposed Legislation
Both the 109th and the 110thCongresses considered the orphanworks problem, in each case introducinglegislation that built upon many of theCopyright Office’s recommendations.
8
 The proposed legislation would have:(1) Limited remedies available under theCopyright Act when a user is unable tolocate the copyright owner or otherappropriate rights holder afterconducting a good faith reasonablydiligent search; (2) been applicable on acase-by-case basis, meaning that userscould not assume that an orphan workwould retain its orphan statusindefinitely; and (3) permitted thecopyright owner or other rights holderlater to collect reasonable compensationfrom the user, but not statutory damagesor attorneys’ fees. In other words, theproposed legislation did not create anexception or limitation of generalapplicability, but rather placed alimitation on the remedies that might beimposed in a particular circumstancewith respect to a particular user. Thelegislation also provided a specialprovision for noncommercial actorsengaged in noncommercial activities,with some conditions.Photographs proved to be aparticularly complex and difficult areato resolve. As cited in the Report andthe congressional deliberations thatfollowed, the problem of orphanphotographs is well documented. At thesame time, Congress wrestled with how best to protect photographers who arethe victims of accidental or nefariousacts, including purposeful deletion of  bylines, captions, or digital watermarks.The 2008 bills built upon thefoundation of the 2006 bill and includeda number of proposals designed withphotographers in mind, such as: Aprovision in both the House and theSenate drafts that required users topromptly compensate copyright ownersshould they appear (including forexample, where the amount of paymentmight be too small to make litigation tocollect it worthwhile); provisions in both drafts that would have excludedinfringements resulting from fixation of a pictorial, graphic, or sculptural workin or on a useful article that is offeredfor sale or other commercial distributionto the public (
e.g.,
the use of photographs on tote bags or similarmass merchandise); and a provision inthe House draft that required a user tofile search information and relatedevidence with the Copyright Officeunder fees to be set by regulation.Moreover, the 2008 bills would havedelayed the effective date of legislationuntil such time as the Copyright Officecould confirm the availability of two‘‘separate and independent searchable,comprehensive electronic databases,that allow for searches of copyrightedworks that are pictorial, graphic, andsculptural works[.]’’
9
 Search criteria also became a majorfocus in both the House and the Senate,and stakeholders with a variety of perspectives engaged in discussions andrefinement of the bills throughout the2008 deliberations. Ultimately, Congresssettled upon an innovative mix of mandatory and voluntary requirementsthat served to provide meaningfulguidance to users, and incentives tocopyright owners to make themselveslocatable (including through investmentin registries and search tools that mightconnect users to them). For example, the bills set forth certain baselinerequirements (such as searching theonline records of the Copyright Office), but also would have required users toconsult the best practices applicable tothe work at issue (
e.g.,
practices forfinding photographers or filmmakers),which would be developed through theparticipation of both copyright ownersand copyright users and coordinated bythe Register of Copyrights.Congress came very close to adoptinga consensus bill shortly before thepresidential election in 2008, but didnot enact orphan works legislation before adjourning.
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64557
Federal Register
/Vol. 77, No. 204/Monday, October 22, 2012/Notices
10
For a discussion of the background of the case,
see Authors Guild, Inc. v. Google Inc.,
770 F. Supp.2d 666 (S.D.N.Y. 2011). A group of photographersand illustrators filed a related suit in 2010.
See Am.Soc’y of Media Photographers, Inc.
v.
Google Inc.,
No. 10–2977 (S.D.N.Y. 2010).
11
See Authors Guild, Inc.,
770 F. Supp. 2d at670–71.
12
Statement of Interest of the United States of America Regarding Proposed Amended SettlementAgreement,
Authors Guild, Inc.
v.
Google, Inc.,
No.05–8136 (S.D.N.Y Feb. 4, 2010) at 1,
13
Id.
at 2.
14
See Authors Guild, Inc.,
770 F. Supp. 2d 666.
15
Id.
at 670.
16
Id 
at 677.
17
Id.
18
Id.
19
Id.
at 678.
20
See
Statement of the Ass’n of Am. Publishers,
Publishers and Google Reach Settlement 
(Oct. 4,2012),
C. Ongoing Litigation
Recent high-profile litigation in theUnited States raised additionalquestions and concerns regardingorphan works, particularly in thecontext of mass digitization. Thepossibility of mass digitization was notsquarely addressed by partiesresponding to the Copyright Office in2005–2006, is not a focus of the OrphanWorks Report, and was not addressed byCongress in its proposed legislation. TheReport does reflect some limiteddiscussion of the increased risk of institutions that might want to use morethan one orphan work in a singleproject, such as an archive postingmultiple historic images to its Web site.This discussion informed and led to thespecial provisions for noncommercialactors addressed above, but it did notaddress situations where works might be digitized systematically, includingfor preservation purposes, or situationswhere collections of works might bereproduced en masse, including throughpublic-private partnerships. Ultimately,the issues at the heart of massdigitization are policy issues of adifferent nature: the works may in facthave copyright owners, but it may betoo labor-intensive and too expensive tosearch for them, or it may be factuallyimpossible to draw definitiveconclusions about who the copyrightowners are or what rights they actuallyown.(1) Google Books Search LitigationIn 2004, Google began an ambitiousproject to scan and digitize millions of  books held in several major academiclibraries, including many books stillprotected by copyright. As part of its‘‘Google Books’’ project, Googleprovided digital copies of the scanned books to partner libraries and made textof the books available for onlinesearching. Users were permitted to view‘‘snippets’’ of scanned books that werestill protected by copyright and todownload full copies of books that werein the public domain. Google did not,however, obtain permission from therelevant copyright owners for theproject. In 2005, a group of authors andpublishers filed a class action lawsuit infederal district court asserting that theGoogle Books project amounted towillful copyright infringement.
10
 The parties filed a proposedsettlement with the district court onOctober 28, 2008. After significantobjections from various individualauthors, groups, and foreigngovernments, the parties filed anamended settlement agreement onNovember 13, 2009. Under the terms of the amended settlement, copyrightowners of out-of-print books wererequired to ‘‘opt out’’ of the settlementor their works could be scanned,digitized, and exploited by Googlethrough a number of new businessarrangements. These businessarrangements included online access,use of the books in subscriptiondatabases, and use of advertisements inconnection with these services. Thesettlement also proposed to establish a‘‘Book Rights Registry’’ (the ‘‘Registry’’)that would maintain a database of rightsholders and administer distribution of revenues from exploitation of thescanned books. Google would providepayments to the Registry on behalf of rights holders and, in turn, the Registrywould distribute the funds to registeredrights holders. If no rights holder cameforward to claim the funds after acertain amount of time, the funds could be used to cover the expense of searching for copyright owners ordonated to literary-based charities.
11
 The Department of Justice (‘‘DOJ’’)filed two statements of interest in thecase on behalf of the United States. DOJacknowledged that ‘‘[b]reathing life intomillions of works that are noweffectively dormant’’ and increasingpublic access to those works is a‘‘worthy objective[ ].’’
12
At the sametime, DOJ expressed concern that thesettlement could conflict with coreprinciples of the Copyright Act and alsoconfer a ‘‘significant and possiblyanticompetitive advantage’’ onGoogle.
13
 On March 22, 2011, Judge Chin of theUnited States District Court for theSouthern District of New York rejectedthe amended settlement agreement filedin the case.
14
The opinionacknowledged that ‘‘the benefits of Google’s book project are many.’’
15
Thecourt, however, also expressed concernabout the potential reach of the parties’proposal. Ultimately, the courtconcluded that the proposed settlementwould inappropriately implement aforward-looking business arrangementgranting Google significant rights toexploit entire books without permissionfrom copyright owners, while at thesame time releasing claims well beyondthose presented in the dispute.
16
Thecourt noted that the settlement wouldgive Google—and Google alone—theability to control the digitalcommercialization of millions of booksas it would require authors and otherrights holders of out-of-print books to‘‘opt out’’ of the settlement by objectingto the reproduction, distribution, anddisplay of their works.The court rejected the settlement inpart because of the settlement’streatment of orphan works. The courtexpressly deferred to Congress onorphan works-related issues, stating thatthe ‘‘questions of who should beentrusted with guardianship overorphan books, under what terms, andwith what safeguards, are matters moreappropriately decided by Congress thanthrough an agreement among private,self-interested parties.’’
17
CitingSupreme Court precedent, the court alsoaffirmed that it is ‘‘Congress’sresponsibility to adapt the copyrightlaws in response to changes intechnology.’’
18
Finally, the courtasserted that the settlement agreementwould raise international concerns andthus for that reason as well, ‘‘the matteris better left for Congress.’’
19
 The Second Circuit recently stayedthe case pending Google’s appeal of class certification. On October 4, 2012,the five major publisher plaintiffssettled with Google. According to publicstatements about the settlement, thepublisher plaintiffs will be permitted tochoose whether or not to includedigitized books in the Google Booksproject.
20
Further details of thesettlement have not been made public.Notably, the settlement does not appearto require formal court approval becauseit only resolves the claims of thespecific publisher plaintiffs. Thesettlement does not affect claims made by the Authors Guild or non-parties tothe lawsuit. Therefore, the settlementwould not address claims over orphanworks.(2) HathiTrust LitigationOn September 12, 2011, the AuthorsGuild, along with two foreign authors’groups and a number of individual
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