US Re-Enters the Orphan Works Debate

The US Copyright Office (USCO) has recently returned to the subject of orphan works with a study outlining its analysis and proposals, a pdf version of which is available here. At 234 pages long, the best we can do here is provide a very broad overview of the study, and invite our readers to test their personal attention thresholds against the US Government's deathless prose. Just as an incentive, the main body is only 112 pages, and the remainder consists of hefty annexes covering the draft legislation and other supporting information.

This is not the first time the US has addressed the contentious subject of orphans. This time they have conjoined the subject of orphan works with the perceived need to do something to ease the burden on those engaged in the mass digitization of (mainly literary) works. The USCO have been persuaded that it is too financially and physically onerous to expect the digitizers (such as the Google Book Project) to contact each and every author for permission to scan their works, even where the contact information may in fact be readily available.

Orphan Works

 As we will assume that readers of this blog are relatively well aware of the alleged benefits of allowing third parties to access orphan works in order to exploit them through  such activities such as publication, reproduction and making available to the public, things normally reserved to a copyright owner, we won't reiterate what the USCO study has to say on this aspect.

Thus, after conducting a wide review of the solutions adopted or proposed by other nations (including the EU), the USCO study concludes that the best solution for the USA would be a legislative one, as opposed, for example, to letting the courts to apply the Fair Use criteria on a case by case basis. To that end the USCO concludes that resurrecting the failed Shawn Bentley Act of 2008 S. 2913, along with features taken from the 2008 House bill H.R. 5889, would meet the criteria (see below) which they consider any amendment needs to reflect.  In essence the proposed amendment to the Copyright Act 1976 would require a diligent search and registration of the intention to use the work, in return for which the user would face only limited liability in the event that the legitimate owner came forward to claim his/her work. The Fair Use defence would also still be available to the user.  Here is how they summarise the criteria for such legislation:
"

• Establish a limitation on remedies for copyright infringement for eligible users who can  prove they have engaged in a good faith diligent search for the owner of a copyright and  have been unable to identify or locate him or her; 
• Define a diligent search as, at a minimum, searching Copyright Office records; searching  sources of copyright authorship, ownership, and licensing; using technology tools; and  using databases, all as reasonable and appropriate under the circumstances;
• Require the Copyright Office to maintain and update Recommended Practices for diligent  searches for various categories of works, through public consultation with interested  stakeholders;
• Permit a U.S. court, in its determination of whether a particular search qualifies under the  statute, to take into account a foreign jurisdiction's certification that a search was in good  faith and sufficiently diligent, provided the foreign jurisdiction provides similar treatment  to qualifying U.S. searches;
• In addition to a diligent search, condition eligibility on a user filing of a Notice of Use with  the Copyright Office, providing appropriate attribution, and engaging in negotiation for  reasonable compensation with copyright owners who file a Notice of Claim of  Infringement, among other requirements;
• Limit monetary relief for infringement of an orphan work by an eligible user to  'reasonable compensation'  – the amount that a willing buyer and a willing seller would  have agreed upon immediately before the use began;
• Bar monetary relief for infringements of orphan works by eligible non-profit educational  institutions, museums, libraries, archives, or public broadcasters, for non-commercial  educational, religious, or charitable purposes, provided the eligible entity promptly ceases  the infringing use;
• Condition injunctive relief for infringement of orphan works by accounting for any harm  the relief would cause the infringer due to its reliance on its eligibility for limitations on  remedies;
• Limit the scope of injunctions against the infringement of an orphan work if it is combined with  'significant original expression'  into a new work,  provided the infringer pays  reasonable compensation for past and future uses and provides attribution; 
• Allow a court to impose injunctive relief for the interpolation of an orphan work into a  new derivative work, provided the harm to the owner-author is reputational in nature and  not otherwise compensable;
• Condition the ability of state actors to enjoy limitations on injunctive relief upon their  payment of any agreed-upon or court-ordered reasonable compensation; and 
• Explicitly preserve the ability of users to assert fair use for uses of orphan works. "

One of the earliest responses to the proposal has come from Mike Masnick on the Techdirt blog.   Masnick is characteristically scathing about the proposed measures, preferring to use the term 'hostage' rather than orphan, and arguing that a better approach would be to avoid (or at least substantially reduce) the creation of orphans by reinstating the compulsory registration of works in order for them to gain copyright protection. One quibble with this response is it does not address the current problem of the millions of orphans already in existence.
Comment from academic sources has yet to appear, possibly because many interested stakeholders, including academics, will have contributed in the earlier consultation phase, and therefore would have reasonable foreknowledge of what was likely to be proposed.

Mass Digitization

The problem facing institutions and companies (such as HathiTrust and Google Books) which wish to digitize vast quantities of works, some of which may well also be orphans, is rather different in that it is economically infeasible to contact each and every author for permission. The USCO acknowledges this difference by proposing a different solution to the problem, namely developing  an Extended Collective Licensing (ECL) scheme, but unlike the orphan work issue, their proposal here is to lead off with a pilot scheme in order to develop the most suitable ECL framework, concentrating initially on literary, pictorial and graphic, and photographic works.  Furthermore, the pilot scheme will not address unpublished works. The USCO appears to have accepted from an early stage that any ECL scheme will operate on an opt-out basis, although exactly how this will be managed is one of the aims of the pilot scheme.

Here's what the USCO's press release on the subject says about the next phase: "Because the success of such a system depends on the voluntary involvement of both copyright owners and users, the Office is inviting public comment on several issues concerning the scope and operation of the pilot program. The Office will then seek to facilitate further discussion through stakeholder meetings and, if necessary, additional requests for written comment. Based on this input, the Office will draft a formal legislative proposal for Congress’s consideration."
The Notice of Inquiry is available here. Written comments must reach the USCO by no later 10 August 2015