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Federal Register / Vol. 70, No.

16 / Wednesday, January 26, 2005 / Notices 3739

of the General Counsel/CARP, U.S. provisions established by the Copyright DATES: Written comments must be
Copyright Office, James Madison Royalty and Distribution Reform Act of received in the Copyright Office on or
Memorial Building, Room LM–401, 101 2004 (‘CRDRA’).’’ Joint petition at 2. before 5 p.m. EST on March 25, 2005.
Independence Avenue, SE, Washington, They assert that their request is Interested parties may submit written
DC 20559–6000 between 8:30 a.m. and consistent with the CRDRA, Pub. L. reply comments in direct response to
5p.m. If delivered by a commercial 108–419, which does not take effect the written comments on or before 5
carrier, an original and five copies of a until May 30, 2005, and note that the p.m. on May 9, 2005.
comment must be delivered to the CRDRA does not contain a provision for ADDRESSES: All submissions should be
Congressional Courier Acceptance Site a termination of proceedings that addressed to Jule L. Sigall, Associate
located at 2nd and D Street, NE, addresses petitions filed between Register for Policy & International
between 8:30 a.m. and 4 p.m. The November 30, 2004, and May 30, 2005. Affairs. Comments may be sent by
envelope should be addressed as Furthermore, Joint Sports Claimants and regular mail or delivered by hand, or
follows: Office of the General Counsel/ Program Suppliers submit that a CARP sent by electronic mail to the e-mail
CARP, Room 403, James Madison proceeding will resolve the 2005 cable address ‘‘orphanworks@loc.gov’’ (see
Memorial Building, 101 Independence rate adjustment more expeditiously than file formats and information
Avenue, SE, Washington, DC. If sent by the CRJs which, in their view, could requirements under supplemental
mail (including overnight delivery using take more than two years to finalize. Id. information below). Those sent by
U.S. Postal Service Express Mail), an at 3. regular mail should be addressed to the
original and five copies of a comment The Copyright Office seeks public U.S. Copyright Office, Copyright GC/
should be addressed to: Copyright comment as to whether it is appropriate I&R, P.O. Box 70400, Southwest Station,
Arbitration Royalty Panel (CARP), P.O. and/or required that the 2005 cable rate Washington, DC 20024. Submissions
Box 70977, Southwest Station, adjustment be resolved through the delivered by hand should be brought to
Washington, DC 20024–0977. CARP process set forward in chapter 8 the Public Information Office, U.S.
Comments may not be delivered by of the Copyright Act prior to passage of Copyright Office, James Madison
means of overnight delivery services the CRDRA, or whether the joint Memorial Building, Room LM–401, 101
such as Federal Express, United Parcel petition filed by the Joint Sports Independence Avenue, SE.,
Service, etc., due to delays in processing Claimants and the Program Suppliers Washington, DC 20540.
receipt of such deliveries. should be terminated and transferred to FOR FURTHER INFORMATION CONTACT:
FOR FURTHER INFORMATION CONTACT: the CRJs. Mary Rasenberger, Policy Advisor for
David O. Carson, General Counsel, or Dated: January 21, 2005 Special Programs, Copyright GC/I&R,
Tanya M. Sandros, Associate General Marybeth Peters, PO Box 70400, Southwest Station,
Counsel, Copyright Arbitration Royalty Washington, DC 20024–0400.
Register of Copyrights.
Panel (CARP), P.O. Box 70977, Telephone (202) 707–8350; telefax (202)
Southwest Station, Washington, DC [FR Doc. 05–1436 Filed 1–25–05; 8:45 am]
707–8366.
20024–0977. Telephone: (202) 707– BILLING CODE 1410–33–S
SUPPLEMENTARY INFORMATION:
8380. Telefax: (202) 252–3423.
SUPPLEMENTARY INFORMATION: Section File Formats and Required Information
LIBRARY OF CONGRESS
111 of title 17 of the United States Code 1. If by electronic mail: Send to
creates a statutory license for cable Copyright Office ‘‘orphanworks@loc.gov’’ a message
systems that retransmit to their containing the name of the person
subscribers over–the–air broadcast Orphan Works making the submission, his or her title
signals. Royalty fees for this license are and organization (if the submission is
calculated as percentages of a cable AGENCY: Copyright Office, Library of on behalf of an organization), mailing
system’s gross receipts received from Congress. address, telephone number, telefax
subscribers for receipt of broadcast ACTION: Notice of inquiry. number (if any) and e-mail address. The
signals. A cable system’s individual message should also identify the
gross receipts determine the applicable SUMMARY: The Copyright Office seeks to document clearly as either a comment
percentages. These percentages, and the examine the issues raised by ‘‘orphan or reply comment. The document itself
gross receipts limitations, are published works,’’ i.e., copyrighted works whose must be sent as a MIME attachment, and
in 37 CFR part 256 and are subject to owners are difficult or even impossible must be in a single file in either: (1)
adjustment at five–year intervals. 17 to locate. Concerns have been raised Adobe Portable Document File (PDF)
U.S.C. 801(b)(2)(A) & (D) (2000). This is that the uncertainty surrounding format (preferred); (2) Microsoft Word
a window year for such an adjustment. ownership of such works might 2000 or earlier; (3) WordPerfect 8.0 or
On January 10, 2005, the Copyright needlessly discourage subsequent earlier; (4) Rich Text File (RTF) format;
Office received a joint petition from creators and users from incorporating or (5) ASCII text file format.
representatives of copyright owners of such works in new creative efforts or 2. If by regular mail or hand delivery:
sports programming (‘‘Joint Sports making such works available to the Send, to the appropriate address listed
Claimants’’) and motion pictures and public. This notice requests written above, two copies of the comment, each
syndicated television series (‘‘Program comments from all interested parties. on a 3.5-inch write-protected diskette,
Suppliers’’) requesting commencement Specifically, the Office is seeking labeled with the name of the person
of a cable rate adjustment proceeding. comments on whether there are making the submission and, if
See http://www.copyright.gov/carp/ compelling concerns raised by orphan applicable, his or her title and
cable–rate–petition.pdf. As part of the works that merit a legislative, regulatory organization. Either the document itself
joint petition, Joint Sports Claimants or other solution, and what type of or a cover letter must also include the
and Program Suppliers request that their solution could effectively address these name of the person making the
‘‘petition and any resulting proceeding concerns without conflicting with the submission, his or her title and
be handled pursuant to existing CARP legitimate interests of authors and right organization (if the submission is on
procedures, rather than under the new holders. behalf of an organization), mailing

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3740 Federal Register / Vol. 70, No. 16 / Wednesday, January 26, 2005 / Notices

address, telephone number, telefax Concerns have been raised, however, domain and that for a number of those
number (if any) and e-mail address (if as to whether current copyright law older works it might be difficult or
any). The document itself must be in a imposes inappropriate burdens on impossible to identify the copyright
single file in either (1) Adobe Portable users, including subsequent creators, of owner in order to obtain permissions.
Document File (PDF) format (preferred); works for which the copyright owner Congress nevertheless determined that
(2) Microsoft Word 2000 or earlier; (3) cannot be located (hereinafter referred the renewal system should be discarded,
WordPerfect Version 8.0 or earlier; (4) to as ‘‘orphan’’ works). The issue is in part, because of the ‘‘inadvertent and
Rich Text File (RTF) format; or (5) ASCII whether orphan works are being unjust loss of copyright’’ it in some
text file format. needlessly removed from public access cases caused.2 More recently, in the
3. If by print only: Anyone who is and their dissemination inhibited. If no mid-1990s, Congress heard concerns
unable to submit a comment in one claims the copyright in a work, it that the Copyright Term Extension Act
electronic form should submit an appears likely that the public benefit of would exacerbate problems in film
original and two paper copies by hand having access to the work would preservation by maintaining copyright
or by mail to the appropriate address outweigh whatever copyright interest protection for older motion pictures for
listed above. It may not be feasible for there might be. Such concerns were which the copyright owner is difficult to
the Copyright Office to place these raised in connection with the adoption identify.3 Also, in our study on Digital
comments on the Office’s Web site. of the life plus 50 copyright term with Distance Education published in 1999,
the 1976 Act and the 20-year term the Copyright Office identified several
Background extension enacted with the Sonny Bono ‘‘problems with licensing’’ that
The Copyright Act of 1976 made it Copyright Term Extension Act of 1998. educators asserted in attempting to use
substantially easier for an author to The Copyright Office has long shared copyrighted materials in digital formats,
obtain and maintain copyright in his or these concerns about orphan works and including that ‘‘it can be time-
her creative works. Today, copyright has considered the issue to be worthy of consuming, difficult or even impossible
subsists the moment an original work of further study. On January 5, Senators to locate the copyright owner or
authorship is fixed in a tangible form— Orrin Hatch and Patrick Leahy of the owners.’’ 4
it need not be registered with the Senate Judiciary Committee asked the A situation often described is one
Copyright Office or published with Register of Copyrights to study this where a creator seeks to incorporate an
notice to obtain protection. While issue and to report to the Senate older work into a new work (e.g., old
registration of claims to copyright with Judiciary Committee by the end of the photos, footage or recordings) and is
the Copyright Office is encouraged and year. Also in January, Reps. Lamar willing to seek permission, but is not
provides important benefits to copyright Smith and Howard Berman, the able to identify or locate the copyright
holders, it is not required as a condition chairman and ranking member of the owner(s) in order to seek permission.
to copyright protection. Under the 1909 House Judiciary Committee’s While in such circumstances the user
Act, renewal registration was required Subcommittee on Courts, the Internet might be reasonably confident that the
to maintain protection beyond an initial and Intellectual Property, sent letters to risk of an infringement claim against
28-year term. Failure to register the the Register supporting this effort. The this use is unlikely, under the current
renewal during the last year of the first Office is gratified that Congress has system the copyright in the work is still
term resulted in complete loss of shown an interest in this important valid and enforceable, and the risk
protection. The 1976 Act removed the issue and is pleased to assist Congress cannot be completely eliminated.
renewal requirement going forward, but in its efforts to learn more about the Moreover, even where the user only
kept it for works copyrighted before problem and to consider appropriate copies portions of the work in a manner
1978. It was not until 1992 that the solutions. that would not likely be deemed
renewal requirement was abolished Prior to the 1976 Act, the term of infringing under the doctrine of fair use,
altogether. These changes, as well as protection was limited to 28 years if the it is asserted by some that the fair use
other changes in the 1976 Act and in the copyright was not renewed. Under this defense is often too unpredictable as a
Berne Convention Implementation Act system, if the copyright owner was no general matter to remove the uncertainty
of 1988, were important steps toward longer interested in exploiting the work, in the user’s mind.
harmonizing U.S. copyright law with or a corporate owner no longer existed, Some have claimed that many
international treaties. Specifically, the or, in the case of individual copyright potential users of orphan works, namely
Berne Convention and other treaties owners, there were no interested heirs individuals and small entities, may not
dealing with copyright that have to claim the copyright, then the work have access to legal advice on these
followed forbid the imposition of entered the public domain. Of course, it issues and cannot fully assess risk
formalities as a condition to copyright, also meant that some copyrights were themselves. Moreover, even if they are
principally on the grounds that failure unintentionally allowed to enter the able to determine with some certainty
to comply with formalities can serve as public domain, for instance, where the that there is little or no risk of losing a
a trap for the unwary, resulting in the claimant was unaware that renewal had lawsuit, they may not be able to afford
inadvertent loss of copyright.1 to occur within the one year window at any risk of having to bear the cost of
the end of the first term or that the defending themselves in litigation.
1 The Berne Convention article 5(2) ‘‘no copyright was up for renewal. The
formalities’’ requirement has been incorporated by legislative history to the 1976 Act 2 H.R. Rep. No. 94–1476, at 134 (1976).
reference into both the Agreement on Trade-Related reflects Congress’ recognition of the 3 Letter from Larry Urbanski, Chairman, American
Aspects of Intellectual Property Rights (‘‘TRIPS’’), concern raised by some that eliminating Film Heritage Association, to Senator Strom
and the WIPO Copyright Treaty (‘‘WCT’’). See Thurmond Opposing S. 505 (Mar. 31, 1997),
Agreement on Trade-Related Aspects of Intellectual
renewal requirements would take a large available at http://homepages.law.asu.edu/
Property Rights, Apr. 15, 1994, art. 9.1, Marrakesh number of works out of the public ∼dkarjala/Opposing CopyrightExtension/letters/
Agreement Establishing the World Trade AFH.html (stating that as much as 75% of motion
Organization, Annex 1C, Legal Instruments— Phonograms Treaty (‘‘WPPT’’) contains an express pictures from the 1920s are no longer clearly owned
Results of the Uruguay Round vol. 31, 33 I.L.M. 81, ‘‘no formalities’’ provision without reference to the by anyone, and film preservationists as such cannot
87 (1994); WIPO Copyright Treaty, Apr. 12, 1997, Berne Convention. See WIPO Performances and obtain the necessary permissions to preserve them).
art. 3, S. Treaty Doc. No. 105–17 (1997), 36 I.L.M. Phonograms Treaty, Apr. 12, 1997, art. 20, S. Treaty 4 See Register of Copyrights, Report on Copyright

65, 69 (1997). The WIPO Performances and Doc. No. 105–17 (1997), 36 I.L.M. 76, 80 (1997). and Digital Distance Education 41–43 (1999).

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Federal Register / Vol. 70, No. 16 / Wednesday, January 26, 2005 / Notices 3741

Given the high costs of litigation and the owner.6 With respect to many of these already expired. The law provides that
inability of most creators, scholars and works, however, particularly those there is no infringement where the
small publishers to bear those costs, the owned by legal entities or other copyright owner cannot be found by a
result is that orphan works often are not sophisticated copyright owners, it can reasonable inquiry and where the date
used—even where there is no one who be assumed that the work no longer had the copyright expired is uncertain but it
would object to the use. sufficient economic value to the is reasonable to assume that the
This uncertainty created by copyright copyright claimant to merit renewal. copyright has expired.8
in orphan works has the potential to Libraries and scholars have argued that
Specific Questions
those works that have so little economic
harm an important public policy behind Through review of the submissions,
value that they fail to merit the small
copyright: To promote the the Copyright Office intends to
expense and effort of renewal may
dissemination of works by creating determine the scope of the problem,
nevertheless have scholarly or
incentives for their creation and evaluate appropriate next steps and
educational value and should not be
dissemination to the public. First, the needlessly barred from such use. create a record from which specific
economic incentive to create may be Several alternatives for addressing legislative proposals, if appropriate,
undermined by the imposition of these issues have been proposed and at could be considered and developed. To
additional costs on subsequent creators least one country, Canada, has adopted that end, this notice of inquiry sets forth
wishing to use material from existing legislation that specifically addresses several sets of questions, organized by
works. Subsequent creators may be orphan works. For background issue, in an effort to begin gathering
dissuaded from creating new works purposes, the Copyright Office describes relevant information. Commenters do
incorporating existing works for which some examples in this notice. It is not need to respond to all questions, but
the owner cannot be found because they stressed that the Office does not take a are encouraged to respond to those as to
cannot afford the risk of potential position as to the viability or which they have particular knowledge
liability or even of litigation. Second, desirability of any specific proposals or or information. Commenters may also
the public interest may be harmed when systems at this time, but seeks input as frame additional questions or reframe
works cannot be made available to the to the pros and cons of, and issues any of the questions below.
public due to uncertainty over its raised by, each, as well as proposals for
copyright ownership and status, even 1. Nature of the Problems Faced by
other solutions and analysis thereof.
when there is no longer any living An example of a system that enables Subsequent Creators and Users
person or legal entity claiming the use, in certain circumstances, of What are the difficulties faced by
ownership of the copyright or the owner orphan works can be found in Canada’s creators or other users in obtaining
no longer has any objection to such use. copyright law. The copyright law has a rights or clearances in pre-existing
Empirical analysis of data on trends specific provision permitting anyone works? What types of creators or users
in copyright registrations and renewals who seeks permission to make a are encountering these difficulties and
over the last century suggests that a copyright use of a work and cannot for what types of proposed uses? How
large number of works may fall into the locate the copyright owner to petition often is identifying and locating the
the Canadian Copyright Board for a copyright owner a problem? What steps
category of orphan works.5 Based on
license.7 The Copyright Board makes a are usually taken to locate copyright
data of registrations of claims to
determination as to whether sufficient owners? Are difficulties often
copyright and their subsequent renewal
effort has been made to locate the encountered even after the copyright
under the 1909 Act, it appears that,
owner. If so, the Copyright Board may owner is identified? If so, this is an
overall, well less than half of all grant a license for the proposed use. It issue that the Copyright Office also
registered copyrighted works were will set terms and fees for the proposed invites you to address.
renewed under the old copyright use of the work in its discretion and will
system. Because renewal was required hold collected fees in a fund from which 2. Nature of ‘‘Orphan works’’:
to maintain protection of a work, this the copyright owner, if he or she ever Identification and Designation
data suggests that, at least in many surfaces and makes a claim, may be How should an ‘‘orphan work’’ be
cases, there was insufficient interest a paid. It should be noted that since the defined? Should ‘‘orphan works’’ be
mere 28 years later to maintain enactment of these provisions in 1990, identified on a case-by-case basis,
copyright protection. The empirical data the Copyright Board has issued only 125 looking at the circumstances
does not indicate why any particular such licenses. More information about surrounding each work that someone
works were not renewed, and no doubt, the Canadian approach can be found on wishes to use and the attempts made to
a certain portion of those works were the Copyright Board Web site at: locate the copyright owner? Should a
not renewed due to inadvertence, http://www.cb-cda.gc.ca/unlocatable/ more formal system be established? For
mistake or ignorance on the part of the index-e.html. instance, it has been suggested that a
The United Kingdom has a provision register or other filing system be
5 See William M. Landes and Richard A. Posner, that affects a small subset of orphan adopted whereby copyright owners
Indefinitely Renewable Copyright 22–41 (John M. works, namely those for which it is could indicate continuing claims of
Olin Law & Economics Working Paper No. 154, 2d
Series, 2002), available at http://www.law.
reasonable to assume the copyright has ownership to the copyrights in their
uchicago.edu/Lawecon/WkngPprs_151–175/ works.
154.wml-rap.copyright.new.pdf; see also H.R. Rep. 6 Indeed, one reason why the renewal system was
On the other hand, the establishment
No. 94–1476, at 136 (1976) (‘‘A statistical study of replaced in recent copyright enactments was of a filing system whereby the potential
renewal registrations made by the Copyright Office because it at times served to impose an excessive
in 1966 supports the generalization that most penalty on the unwary copyright owner. See H.R. user is required to file an intent to use
material which is considered to be of continuing or Rep. No. 94–1476, at 134 (1976) (‘‘One of the worst
potential commercial value is renewed. Of the features of the present copyright law [the 1909 8 Copyright, Designs and Patents Act, 1988, c. 48,

remainder, a certain proportion is of practically no Copyright Act] is the provision for renewal of § 57 (Eng.); see also Copyright and Related Rights
value to anyone, but there are a large number of copyright * * * In a number of cases it is the cause Act, No. 28, 2000 § 88 (Ir.); Laws of Hong Kong,
unrenewed works that have scholarly value to of inadvertent and unjust loss of copyright’’). Chapter 528: Copyright Ordinance, June 27, 1997
historians, architects and specialists in a variety of 7 Copyright Act, R.S.C., ch. C–42, § 77 (1985) § 66, available at http://www.justice.gov.hk/
fields’’). (Can.). Home.htm.

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3742 Federal Register / Vol. 70, No. 16 / Wednesday, January 26, 2005 / Notices

an unlocatable work has also been permission requests can be sent be was to be renewed in the 28th year after
suggested. Would the Copyright Office required? What other information publication. Current copyright law
or another organization administer and should be included? Also, how would provides a presumption after the shorter
publish such filings? For instance, the registry identify the ‘‘works’’ at of 95 years from publication or 120
would the Copyright Office publish lists issue, especially in light of the current years from creation that the work is in
of these notices on a regular basis, multimedia age where works can take the public domain unless the Copyright
similar to the lists of notices of intent to on many forms and spawn multiple Office’s records indicate otherwise (and
enforce restored copyrights filed with derivative works? And, even more the Copyright Office issues a certified
the Office? Questions arising from these importantly, how could fraud and abuse report to that effect).10 Current
different approaches are set forth in the of such a registry be avoided—i.e., what copyright law provides another
next sections. is to prevent someone from fraudulently benchmark in the right to terminate
claiming works as his own? grants of transfers or licenses after 35
A. Case-by-Case Approach Such a registration system could be (and up to 40) years after the grant or
The ‘‘ad hoc’’ or ‘‘case-by-case’’ optional as well as mandatory. Where, publication date.11 Under existing
approach, like that adopted in Canada, under a mandatory system, copyright international treaties, the term of
would set forth parameters for the level owners could be required to make a protection for works measured other
of search that would need to be filing in order to preserve their rights than by the life plus fifty term is
undertaken in order to establish that a and/or prevent their works from being generally fifty years from publication.
particular work is ‘‘orphaned.’’ Ensuing deemed ‘‘orphan,’’ under an optional The Copyright Term Extension Act of
questions include the nature of those registry, registration might provide 1998 extended terms in the U.S. by 20
parameters. Should the focus be on additional benefits. Alternatively, under years, but at the same time recognized
whether the copyright holder is an optional system failure to register that certain uses should still be
locatable? What efforts need be made to could carry certain penalties or limit allowable in those last twenty years,
locate a copyright holder before it can remedies available to the right holder. If namely uses by libraries and archives of
be determined that the owner is not registration were mandatory, on the certain works that are neither available
locatable? Would a search of other hand, would failure to register at a reasonable price nor subject to
registrations with the Copyright Office create a rebuttable presumption that the normal commercial exploitation.12
(or any other registries as described work is ‘‘orphaned,’’ or would it Would the last twenty years of the
below in section B) and an attempt to conclusively be deemed ‘‘orphaned’? copyright term, or any of the other
reach the copyright owner identified on (Questions as to the effect of a benchmarks or time periods noted
the work if any (plus any follow up) be designation as an ‘‘orphan work’’ are set above, be an appropriate measure for
sufficient? What other resources are forth below in section 5). If optional, the eligibility as an ‘‘orphan work’? Should
commonly consulted to locate a registry might serve as just one factor in it be the same for all categories of works,
copyright owner, and what resources determining whether the copyright or different depending on the nature of
should be consulted? Do resources like owner was locatable. How helpful the work? What if the term for a
inheritance records, archives, would such a registration system be in particular work is unknown or
directories of authors or artists need to determining whether a work was in fact uncertain? If the copyright owner is not
be searched? Should there be an ‘‘orphaned’? Would the registry then known or cannot be found, there will
obligation to place an advertisement qualify as just another place that a certainly be instances where the date of
seeking the owner? Should factors such potential user should look to find the creation or death of the author will be
as the age of the work (which is owner? If so, how practicable would unknown. Can it be presumed at a
discussed below), how obscure the work such a system be? What incentives certain point that a work has entered
is or how long it has been since a would a copyright owner have to use into the period in which it can be
publication occurred be taken into such a system? Should the owner be recognized as an orphan work?13
consideration? permitted to acquire any additional
benefits from registering, such as 4. Nature of ‘‘Orphan Works’’:
B. Formal Approach Publication Status
additional damages or a penalty for
Another approach, like that used in willful use of a work? Does this tread Should the status of ‘‘orphan works’’
the 1909 Act, would require registration too closely to the copyright registration only apply to published works, or are
or some sort of filing by copyright system? What would the effect be on the there reasons for applying it to
owners to maintain their copyrights past user? For instance, if a user did not
a certain age and to assist in locating check the registry, would it prevent the 10 17 U.S.C. § 302(e) (2003).
copyright owners.9 Would such a new user from claiming that the work was 11 § 203.
12 § 108(h). Specifically, this provision provides
registry or registries be created separate orphaned? Would there be sufficient
that in the last twenty years of the term of any
from the existing system of copyright incentive for copyright owners to published work, a library or archive, including a
registration (akin to the designated agent register in a permissive system? nonprofit educational institution that functions as
registry under section 512 of the such, may make any copyright use of the work
Copyright Act) where copyright owners 3. Nature of ‘‘Orphan Works’’: Age (other than create derivative works) for purposes of
preservation, scholarship or research, if it has
could identify themselves so that users Should a certain amount of time have determined on the basis of reasonable investigation,
could more easily find them? Should elapsed since first publication or that (i) the work is not subject to normal
such a registry(ies) be privately owned creation in order for a work to be commercial exploitation, (ii) a copy cannot be
or administered by a government agency eligible for ‘‘orphaned’’ status? If so, obtained at a reasonable price, and (iii) the
copyright owner or its agent has not provided
like the U.S. Copyright Office? What how much time? It might be helpful, in notice with the Copyright Office that neither (i) or
would such a registry look like? What determining what an appropriate time (ii) applies to the work.
kind of information should be required period would be, to note some of the 13 For instance, the U.K. law cited above provides

from such a filing? Should the different benchmarks for term a complete defense against liability if the owner
cannot be found after reasonable inquiry and the
identification of a person to whom requirements that history and date of expiration is uncertain but it’s reasonable to
international conventions suggest. For presume that the copyright has expired. See supra
9 See also H.R. 2601, 108th Cong. § 3 (2003). example, under the 1909 Act, a work note 8.

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Federal Register / Vol. 70, No. 16 / Wednesday, January 26, 2005 / Notices 3743

unpublished works as well? In Canada, recovery of a reasonable royalty would NATIONAL SCIENCE FOUNDATION
for example, the system for unlocatable be allowed in infringement actions with
copyright owners only applies to respect to orphan works where good Agency Information Collection
published works. What are the reasons faith efforts have been made to locate Activities: Comment Request
for applying it to unpublished works? If the copyright owner. Are there other National Science Foundation.
AGENCY:
‘‘orphan work’’ status would apply to approaches that might be used? If a
unpublished works, how would such a Submission for OMB Review;
ACTION:
reasonable royalty approach is used, Comment Request.
system preserve the important right of how should it be determined in any
first publication recognized by the given case? To settle disputes as to the Under the Paperwork Reduction Act
Supreme Court in Harper & Row?14
appropriate fee, is traditional Federal of 1995, Pub. L. 104–13 (44 U.S.C. 3501
What are the negative consequences of
court litigation the right dispute et seq.), and as part of its continuing
applying such a system to unpublished
resolution mechanism, or should an effort to reduce paperwork and
works?
administrative agency be charged with respondent burden, the National
5. Effect of a Work Being Designated resolving such disputes or should Science Foundation (NSF) is inviting
‘‘Orphaned’ another alternative dispute resolution the general public and other Federal
However a work is identified and mechanism be adopted? agencies to comment on this proposed
designated as ‘‘orphaned,’’ what would continuing information collection. This
Are there other measures that could
be the effects of such designation? is the second notice for public
be applied in cases of orphan works? comment; the first was published in the
Under systems for a mandatory, formal How would these, or any of the others
registry of maintained works, like the Federal Register at 69 FR 64114 and one
described above, affect the incentives comment was received. NSF is
1909 Act, the right to assert one’s
for authors of such works, particularly forwarding the proposed submission to
exclusive rights vis à vis others could
small copyright owners or individuals the Office of Management and Budget
similarly be lost, in whole or in part, if
the work was not contained on the who might bear a greater burden than (OMB) for clearance simultaneously
registry. Should this loss of rights apply copyright owners with more resources? with the publication of this second
only to the particular work at the time 6. International Implications notice.
of use, or only to the particular use or DATES: Comments regarding these
user, or would it affect a permanent loss How would the proposed solutions information collections are best assured
of rights as against all uses and users? comport with existing international of having their full effect if received by
Other possibilities include imposing a obligations regarding copyright? For OMB within 30 days of publication in
limitation on remedies for owners example, Article 5(2) of the Berne the Federal Register.
whose works are ‘‘orphaned’’—without Convention generally prohibits ADDRESSES: Written comments
affecting the copyright itself. For formalities as a condition to the
instance, under the Canadian approach, regarding (a) whether the collection of
‘‘enjoyment and exercise’’ of copyright. information is necessary for the proper
the Copyright Board sets the license fees For any proposed solution, it must be
and other terms for the use and collects performance of the functions of NSF,
asked whether it runs afoul of this including whether the information will
the payments on behalf of the copyright
provision. Would a system involving have practical utility; (b) the accuracy of
owner should one ever be identified.
limitations on remedies be consistent NSF’s estimate of burden including the
Under that approach, users could be
with the enforcement provisions of the validity of the methodology and
confident that their use of the work
would not subject them to the full range Agreement on Trade-Related Aspects of assumptions used; (c) ways to enhance
of remedies under the Copyright Act, Intellectual Property (TRIPS) or the the quality, utility and clarity of the
but only an amount akin to a fee for use. prohibition against conditioning the information to be collected; or (d) ways
At the same time, copyright owners enjoyment or exercise of copyright on to minimize the burden of the collection
would not be concerned about the compliance with formalities of TRIPS of information on those who are to
inadvertent loss of rights from failure to and other international agreements to respond, including through the use of
pay the fee or take other requisite which the U.S. is party? Would such appropriate automated, electronic,
action. Domestically, the Copyright proposals satisfy the three-step test set mechanical, or other technological
Clearance Initiative of the Glushko- forth in TRIPS, Art. 13, requiring that all collection techniques or other forms of
Samuelson Intellectual Property Law limitations and exceptions to the information technology should be
Clinic of American University’s exclusive rights be confined to ‘‘certain addressed to: Office of Information and
Washington College of Law is currently special cases that do not conflict with Regulatory Affairs of OMB, Attention:
developing a proposal that would limit Desk Officer for National Science
the normal exploitation of the work and
the liability for users of orphan works Foundation, 725—17th Street, NW.
do not unreasonably prejudice the
and not result in any loss of copyright Room 10235, Washington, DC 20503,
legitimate interests of the right holder’?
per se on the part of the copyright and to Suzanne H. Plimpton, Reports
Are there any other international issues Clearance Officer, National Science
owner.15 Under that proposal, only a raised by a proposed solution? Foundation, 4201 Wilson Boulevard,
14 See generally Harper & Row, Publishers, Inc. v. Dated: January 21, 2005. Suite 295, Arlington, Virginia 22230 or
Nation Enters., 471 U.S. 539, 550–555 (1985). Marybeth Peters, send e-mail to splimpto@nsf.gov. Copies
15 Pursuant to that proposal, copyright law would
Register of Copyrights. of the submission may be obtained by
be amended to limit liability for the use of works calling (703) 292–7556.
where the user has been unable to locate the [FR Doc. 05–1434 Filed 1–25–05; 8:45 am]
copyright holder after making good faith efforts. FOR FURTHER INFORMATION CONTACT:
BILLING CODE 1410–30–P
Liability could be limited to a ‘‘reasonable royalty’’ Suzanne H. Plimpton, NSF Reports
or the like, or could be akin to the limitation of U.S. Clearance Officer at (703) 292–7556 or
Federal Government liability to ‘‘reasonable and include how to determine what constitutes ‘‘good
entire compensation as damages * * *, including faith efforts’’ to locate the copyright owner and how
send e-mail to splimpto@nsf.gov.
minimum statutory damages.’’ 28 U.S.C. § 1498(b) to determine and/ or settle what a reasonable An agency may not conduct or
(2003). Complex issues raised by that proposal royalty would be. sponsor a collection of information

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