ALAWON Update- Orphan Works

["Hamaker, Chuck" <cahamake@email.uncc.edu>]

FYI...

-------- Original Message --------
From: ALAWASH E-MAIL <ALAWASH@alawash.org>

The following is an Update on Library Community Filing on Orphan Works,
helpfully provided by Prue Adler of the Association of Research
Libraries.

The library community will be filing comments with the U.S. Copyright
Office in support of a proposal to change copyright law to address issues
surrounding orphan works.  Orphan works are those copyrighted works whose
owners are difficult or even impossible to find.  The Copyright Office
issued a Notice of Inquiry on January 26, 2005
(http://www.copyright.gov/fedreg/2005/70fr3739.html) soliciting advice on
the problem of orphan works.  This provides an important opportunity to
those who are interested in using works still protected under the ever
lengthening copyright terms (thanks to the Berne Convention Implementation
Act of 1988 and the Sonny Bono Copyright Term Extension Act of 1998) but
whose owners cannot be identified.

The library associations are working with many in the non-profit community
including library associations, the Glushko-Samuelson Intellectual
Property Clinic, the College Art Association (CAA), the American
Historical Association, cultural institutions, and public interest groups
in developing a "legislative fix" to the Copyright Act to address the
issues associated with orphan works.  The hope is to draft a legislative
solution that many communities and constituencies can support. There is a
strong sense that if many organizations and interests can coalesce behind
one proposal, this could be helpful in moving the discussions forward.
Once review of the draft proposal is completed, I will post it to the
directors list for your consideration.

In the interim, the following is an outline of the draft proposal.

* The definition of an orphan work is a work for which the copyright
  owner cannot be reasonably located.
* The types of works to which the draft solution applies is wide in
  scope - published and unpublished works and older as well as recent
  works. It may be just as difficult to identify the copyright owner of a
  recent photograph as an older work.
* The use of orphan works should apply to all types of uses,
  not-for-profit and for profit.
* The legislative solution is not limited to specific constituencies,
  e.g. libraries or educational institutions. The interest in using orphan
  works is far too broad for such a limitation.
* The proposal calls for a " reasonable efforts search" by "qualified 
  users."   A reasonable effort would be an effort to identify and locate 
  copyright owners in good faith, using location tools and other
  resources, and that is considered reasonable under the totality of the
  circumstances. Such a user is an institution or individual who uses an
  orphan work after conducting a reasonable search.
* The proposal will provide general guidance to the user as to what
  constitutes a reasonable effort, e.g. use of "best practices"  developed
  by relevant professional organizations (e.g. from CAA, the library
  community, etc.) and information from the Copyright Office.
* Once a reasonable effort has been conducted, a user may use an orphan
  work without limitation unless or until an owner comes forward.  If an
  owner does come forward, new use of that work would require permission. 
  Previous use could continue.
* Provisions relating to pursuing legal action are included as are
  limitations on remedies and liability.

We still welcome any information concerning the experiences that users and
institutions have faced when seeking permission to use a copyrighted work.  
The more information that can be provided concerning difficulties you have
faced in seeking permissions will bolster our arguments about the need to
change the law.

Please send any information that you may have to Carrie Russell at
<crussell@alawash.org>.  Included below are questions that may help frame
your response. Thank you!

1) Can you provide specific examples of difficulties that you have faced
in identifying and locating copyright owners when seeking permission for
copyrighted works?  If possible, please include the type of work and its
intended use (e.g., photograph, book, article, film clip), the amount of
time taken for each search, and whether or not you were able to obtain
permission for use of the work.

2) How often is identifying and locating the copyright owner a problem?

3) Are difficulties often encountered even after the copyright owner is
identified? If so, please explain.

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