Editorial - Orphan Works and Unlocatable Copyright Owners

[Amritha <kim_mlis@yahoo.ca>]

(Cross-posted; please excuse duplication.)

An editorial by Lesley Ellen Harris on orphan works and unlocatable
copyright owners is in the latest issue of the print newsletter, The
Copyright & New Media Law Newsletter (http://copyrightlaws.com).  With
permission, it is reproduced below.
 
Sincerely, 

Amritha
amritha@copyrightslaws.com

 
How many times have you been unable to locate the copyright owner of a
specific manuscript or article or photograph, and either took the risk of
using the work without obtaining permission, or reluctantly (and legally)
used alternative material?  Researchers, librarians and corporations have
been facing such issues more and more as we all try to increase our
copyright awareness and compliance.
 
In 1998, a provision for obtaining a license for the use of works by
unlocatable copyright owners was added to the Canadian Copyright Act.  
The license is issued by the Canadian Copyright Board.  Decisions are made
on a case-by-case basis through application to the Board.  If the Board is
satisfied by the applicant�s efforts of e-mails, phone calls, written
correspondence, approaches to copyright collectives, Internet searches,
etc., then it may issue a non-exclusive license which is valid only in
Canada, subject to any terms and conditions it sees fit.  To date, 153
licenses have been issued by the Board for various uses such as:
 
-the mechanical reproduction of musical works
-the reproduction of architectural plans
-the reproduction and incorporation of a film clip
 into another film
-the reproduction in a book of a cartoon
-the reproduction, the public performance and the
 communication to the public of sheet music on a Web site
 
Further information on these and other licenses may be found at:  
www.cb-cda.gc.ca/.
 
The United Kingdom (UK) has a more limited provision relating to orphan
works.  The U.K. copyright statute permits use of a work in which it is
reasonable to assume the copyright has expired.  This law provides that an
infringement does not occur where the copyright owner cannot be located by
a reasonable inquiry.  Also, the date of copyright expiration must be
uncertain, and it must be reasonable to assume that the copyright has
expired.
 
The U.S. Copyright Office has been soliciting comments on orphan works.  
The deadline for submitting comments and reply comments has now passed,
and comments and reply comments can be accessed at:  
http://www.copyright.gov/orphan/index.html.  Public roundtable discussions
will be held in late July 2005 in Washington DC and Berkeley, California.  
As the duration of copyright protection in the U.S. continues to grow and
the formalities (such as registration of copyright-protected works) are
decreasing, many users of copyright-protected works in the U.S. are
finding it more difficult to obtain permissions from copyright holders.  
In light of these facts, the U.S. government is examining the following
issues in its inquiry:
 
-The nature of the difficulties encountered in getting
 permission to use works
-Who is encountering these difficulties
-What exactly are the barriers to locating copyright owners
-How should an 'orphan work' be defined
-If an approach like Canada is followed, what should be considered 
 'reasonable' effort to locate a copyright owner
-What is the role of a registry for owners of possible orphan works
-Should any new system for orphan works apply to both published and 
 unpublished works
-How would any proposed system comply with international copyright 
 obligations
 
Like all provisions in copyright law, there must be a balance between the
rights of the copyright owner and fair and reasonable access to works by
users of copyright-protected materials.  This balance may be found in
legislative, regulatory or other solutions.  It will be interesting to see
how the U.S. Copyright Office responds to the conflicting interests that
are being voiced about this issue.

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