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

June 23, 2015

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.


Take Action! Calls Needed TODAY to HOUSE JUDICIARY SUBCOMMITTEE Opposing “Dark Archive” Provision of Orphan Works Act

May 5, 2008

BACKGROUND

The House Judiciary Committee’s Subcommittee on Courts, the Internet and Intellectual Property plans to mark-up the Orphan Works Act of 2008 (H.R. 5889) on Wednesday, May 7. AALL has long supported the need for orphan works legislation. However, we cannot support H.R. 5889 in its current form and have raised a number of concerns with the bill. Our most pressing concern before Wednesday’s mark-up is that we unequivocally oppose the “dark archive” provision of H.R. 5889.

IMMEDIATE ACTION NEEDED

If your Representative is listed below as a member of the Subcommittee on Courts, the Internet and Intellectual Property, please make a call immediately, through the U.S. Capitol Switchboard at 202-224-3121 or their district office. If your representative is not listed below, please make a call to any of the bill’s sponsors: Representatives Howard Berman, Howard Coble, Lamar Smith or John Conyers.

After introducing yourself as a member of AALL, deliver the following message:

The Orphan Works Act is needed by libraries to limit remedies in copyright infringement cases involving orphan works. However, I strongly oppose the notice of use filing (the “dark archive”) provision in H.R. 5889, because it would limit the usefulness of the legislation by significantly increasing the cost of compliance. I urge you to reject the “dark archive” provision during Wednesday’s subcommittee mark-up.

Thanks,

Mary Alice Baish
Acting Washington Affair Office Representative

LIST OF MEMBERS OF THE HOUSE JUDICIARY’S SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY

DEMOCRATS

Hon. Berman
Chairman
California, 28th

Hon. Conyers Jr.
Michigan, 14th

Hon. Boucher
Virginia, 9th

Hon. Wexler
Florida, 19

Hon. Watt
North Carolina, 12th

Hon. Jackson Lee
Texas, 18th

Hon. Cohen
Tennessee, 9th

Hon. Johnson
Georgia, 4th

Hon. Sherman
California, 27

Hon. Weiner
New York, 9th

Hon. Schiff
California, 29th

Hon. Lofgren
California, 16th

Hon. Sutton
Ohio, 13

REPUBLICANS

Hon. Coble
Ranking Member
North Carolina, 6th

Hon. Feeney
Florida, 24th

Hon. Sensenbrenner Jr.
Wisconsin, 5th

Hon. Smith
Texas, 21st

Hon. Gallegly
California, 24th

Hon. Goodlatte
Virginia, 6th

Hon. Cannon
Utah, 3rd

Hon. Chabot
Ohio, 1st

Hon. Keller
Florida, 8th

Hon. Issa
California, 49th

Hon. Pence
Indiana, 6th

[Posted by Mary Alice Baish]


Take Action! Calls Needed TODAY to SENATE JUDICIARY COMMITTEE Opposing “Dark Archive” Provision of Orphan Works Act

May 5, 2008

BACKGROUND

The Senate Judiciary Committee plans to mark-up the Shawn Bentley Orphan Works Act of 2008 (S. 2913) on Thursday, May 8. AALL has long supported the need for orphan works legislation although we have raised a number of concerns with the bill. Our most pressing concern before Thursday’s mark-up is that we unequivocally oppose any effort to amend S. 2913 to include the “dark archive” provision of H.R. 5889 or other weakening amendments.

IMMEDIATE ACTION NEEDED

If your Senator is listed below as a member of the Judiciary Committee, please make a call immediately, through the Capitol Switchboard at 202-224-3121 or their district office. If your Senator is not listed below, please call the bill’s sponsors, Senators Patrick Leahy and Orrin Hatch.

After introducing yourself as a member of AALL, deliver the following message:

The Orphan Works Act is needed by libraries to limit remedies in copyright infringement cases involving orphan works. However, I strongly oppose the notice of use filing (the “dark archive”) provision in the House bill, H.R. 5889, because it would limit the usefulness of the legislation by significantly increasing the cost of compliance. I urge you to reject the inclusion of the “dark archive” provision of H.R. 5889 during Thursday’s mark-up of S. 2913.

Thanks,

Mary Alice Baish
Acting Washington Affair Office Representative

LIST OF SENATE JUDICIARY COMMITTEE MEMBERS

DEMOCRATS:

Patrick Leahy, Chair
D-VERMONT

Edward M. Kennedy
D-MASSACHUSETTS

Joseph R. Biden, Jr.
D-DELAWARE

Richard J. Durbin
D-ILLINOIS

Charles E. Schumer
D-NEW YORK

Herb Kohl
D-WISCONSIN

Dianne Feinstein
D-CALIFORNIA

Russell D. Feingold
D-WISCONSIN

Benjamin L. Cardin
D-MARYLAND

Sheldon Whitehouse
D-RHODE ISLAND

REPUBLICANS:

Arlen Specter, Ranking Member
R-PENNSYLVANIA

Orrin G. Hatch
R-UTAH

Jeff Sessions
R-ALABAMA

Charles E. Grassley
R-IOWA

Lindsey Graham
R-SOUTH CAROLINA

Jon Kyl
R-ARIZONA

John Cornyn
R-TEXAS

Sam Brownback
R-KANSAS

Tom Coburn
R-OKLAHOMA

[Posted by Mary Alice Baish]


Summary of This Week’s Hearings

March 14, 2008

This week, the House held many hearings on issues of interest to AALL. Mary Alice Baish and I attended hearings on network neutrality, orphan works, and EPA library closures. Here are our summaries of those hearings.

Hearing on Network Neutrality

On Tuesday, March 11, the House Judiciary Committee Antitrust Task Force held its hearing on network neutrality. The hearing brought together an interesting set of bedfellows, including Michele Combs, Vice President of Communications Christian Coalition of America and Caroline Fredrickson, Director of the ACLU Washington Legislative Office, who argued that net neutrality is a free speech issue. Damian Kulash, Lead Vocalist and Guitarist of the band OK Go and Susan P. Crawford, Visiting Associate Professor of Law at Yale Law School also testified in support of net neutrality. Christopher S. Yoo, Professor of Law and Communication and Director of the Center for Technology, Innovation, and Competition at University of Pennsylvania Law School, argued against mandating network neutrality, and Rick Carnes, President of the Songwriters Guild of America testified that internet regulation would harm the fight against internet piracy. Testimony is available on the Committee website.

While members of OK Go were up on the Hill, they sat down to talk with Rep. Edward Markey (D-MA-7), Chairman of the House Subcommittee on Telecommunications and the Internet, about why net neutrality is important to them and why they support Chairman Markey’s recently introduced net neutrality bill (H.R. 5353). OK Go has relied heavily on the internet, especially YouTube, to popularize their music videos, and one of their videos, “Here it Goes Again,” won a Grammy in 2007. “This video certainly would not have gotten out if it weren’t for Net Neutrality,” Kulash said.

Hearing on Orphan Works

On Thursday, March 13, the House Judiciary Committee’s Subcommittee on Courts, the Internet, and Intellectual Property held an important hearing on “Promoting the Use of Orphan Works: Balancing the Interests of Copyright Owners and Users.” The term orphan works refers to the large volume of works that are likely still protected by copyright although their owners cannot be located after a reasonable effort. This is not a new issue for us. Following a 2005 investigation on orphan works by the U.S. Copyright Office, they published a report and recommendations that led to the introduction of the Orphan Works Act of 2006 (H.R. 5439). AALL strongly supported H.R. 5439 and many of you helped get cosponsors by responding to our action alert. Unfortunately, that bill did not move because of concerns raised by textile manufacturers and photographers.

Both groups were represented by witnesses at yesterday’s hearing who raised their continued concerns with the 2006 bill. Speaking on our side in support of the need for orphan works legislation were Register of Copyrights Marybeth Peters; Karen Coe, Associate Legal Counsel for the U.S. Holocaust Memorial Museum; and Allan Adler, Vice President of Legal and Government Affairs for the Association of American Publishers. Testimony of all witnesses is available on the Committee website. It was clear from the hearing that the Subcommittee wants to move forward on a new bill while at the same time responding to concerns from the photographers and textile manufacturers. Stay tuned for next steps and, hopefully, the introduction of a new orphan works bill shortly.

Hearing on EPA’s Library Closures

Also on Thursday, the House Committee on Science and Technology Subcommittee on Investigations and Oversight held a hearing titled, “EPA Library Closures: Better Access for a Broader Audience?.” The hearing was a lively one, and Chairman Brad Miller (D-NC) criticized the Environmental Protection Agency for its failure to talk to stakeholders and the public before closing the libraries and its continued failure to engage stakeholders on its plan to reopen the libraries, as authorized by the FY 2008 appropriations omnibus bill. EPA began closing regional libraries and its Headquarters library in 2006.

Witnesses included John Stephenson (GAO), Charles Orzehoskie (American Federation of Government Employees), Francesca Grifo (Union of Concerned Scientists), Jim Rettig (President–Elect of the American Library Association), and Molly O’Neill (Assistant Administrator for the Office of Environmental Information (OEI) and Chief Information Officer at the Environmental Protection Agency). Witness statements are available on the Committee website. AALL signed on to ALA’s statement.

The FY 2008 appropriations omnibus bill gave a $1 million order to the EPA to restore its library services across the country. The order included a direction to EPA to produce “a report on actions it will take to restore publicly available libraries to provide environmental information and data” to the Appropriations Committee by March 26. The report will include an explanation of EPA’s plan and progress for reopening the libraries.

AALL has been involved in this issue since February 2006, and we are pleased that at long last, the GAO report, “EPA Needs to Ensure That Best Practices and Procedures Are Followed When Making Further Changes to Its Library Network” has been released. We applaud its findings.

[Posted by Emily Feldman]

 


House Hearing on Orphan Works

March 12, 2008

Tomorrow (Thursday, March 13), the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property will hold a hearing on orphan works, titled, “Hearing on Promoting the Use of Orphan Works: Balancing the Interests of Copyright Owners and Users.” The hearing will take place at 10:00 AM in Room 2141 of the Rayburn House Office Building. A live webcast will be available.

Mary Alice Baish, Acting Washington Affairs Representative for AALL, wrote a letter on behalf of the Library Copyright Alliance (LCA) to the Subcommittee Chairman Howard L. Berman (D-CA-28 ) and Ranking Member Howard Coble (R-NC-6) to express gratitude to the Subcommittee for holding a hearing on orphan works. The LCA consists of five major library associations: the American Association of Law Libraries, the American Library Association, the Association of Research Libraries, the Medical Library Association, and the Special Libraries Association. The letter associated the LCA with Karen Coe’s testimony on behalf of the United States Holocaust Memorial Museum and emphasized the importance of orphan works to museums, libraries and archives as institutions that collectively preserve our cultural heritage.

Witnesses will include:

Marybeth Peters
Register of Copyrights
U.S. Copyright Office
Washington, DC

Allan Robert Adler
Vice President of Legal and Governmental Affairs
Association of American Publishers, Inc.
Washington, DC

Corinne P. Kevorkian
President and General Manager
Schumacher, A Division of F. Schumacher & Company
New York, NY

Karen C. Coe
Associate Legal Counsel
United States Holocaust Memorial Museum,
Washington, DC

Victor S. Perlman
General Counsel and Managing Director
American Society of Media Photographers, Inc.
Philadelphia, PA

Maya Gura
Director of Marketing and Sales
PicScout
San Franciso, CA

[Posted by Emily Feldman]


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