Copyright Office’s New Orphan Works Report Contains Flawed Legislative Proposal

By Emily Feltren

On June 4, the Copyright Office released its new Orphan Works and Mass Digitization report, updating its 2006 and 2011 reports on the same topic. The new report analyzes past orphan works legislation, recent legal developments (including the Authors Guild v. Google and Authors Guild v. Hathi Trust), international models, public comments, and discussions from recent roundtables. A major section of the report is dedicated to the Copyright Office’s recommendation for orphan works legislation. While AALL generally favors a legislative solution to the orphan works problem, we oppose the draft as written primarily because of the strict definition of a qualifying search and the notice of use requirement.

The Copyright Office’s proposal is a modified version of the Shawn Bentley Orphan Works Act (S. 2913) as passed by the Senate in 2008. It includes a requirement for limited remedies when a user of an orphan work has conducted a diligent, good faith search for a rights holder and reasonable compensation for rights holders with a special provision for noncommercial actors (including libraries) engaged in noncommercial use of orphan works. The draft also includes an important fair use savings clause, stating that it does not affect any right, limitation, or defense to copyright infringement, including fair use, under Title 17.

However, the definition of a good faith diligent search has many required elements that AALL finds troubling. The search requirements include, at a minimum, a search of Copyright Office records on the Internet, sources containing authorship and ownership information, technology tools, databases, and even Copyright Office records that are not available on the Internet. We object to this definition, which mirrors that included in the Senate version of the Shawn Bentley Orphan Works Act of 2008, because we believe its requirements would be too resource-intensive for law libraries. As AALL stated in our comments on the 2012 Notice of Inquiry concerning orphan works and mass digitization, we believe search requirements must be flexible, reasonable, and inexpensive. We stated, “Institutions working with orphan works will have differing resources that they can employ to undertake searches and, particularly in the area of mass digitization projects, mandatory steps could lead to a cost prohibitive per-work analysis and documentation process. Like fair use, use of orphan works requires flexibility.”

The draft also includes an onerous notice of use requirement, which states that a user must file a notice with the Copyright Office for each orphan work. The filing must include (1) the type of work used; (2) a description of the work; (3) a summary of the qualifying search conducted; (4) any other identifying indicia available to the user; (5) the source of the work (e.g., library or website where work was located, publication where work originally appeared); (6) a certification that the user performed a qualifying search; and (7) the name of the user and a description of how the work will be used. These notice of use filings would be retained by the Copyright Office in a “Notice of Use Archive.”  AALL believes the notice of use requirement would be much too time and resource intensive for law libraries, particularly those wishing to use larger collections of orphan works. The notice of use requirement would be especially problematic for those wishing to use unpublished works or other ephemera. Even the Copyright Office itself acknowledges that “filing a Notice of Use for each use of an orphan work may place a significant burden on users […].” AALL urges the Copyright Office to reconsider this element of their proposal.

In addition to its orphan works draft legislation, the report also includes a proposal for dealing with mass digitization, suggesting an extended collective licensing (ECL) model as the solution. AALL has concerns about an ECL model, which was opposed by most participants during the March 2014 roundtables. We will have further analysis of this proposal in a future blog post.

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