Copyright Office Initiates Inquiry Into Orphan Works in Advance of Advice to Congress

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The Copyright Office has initiated an inquiry into orphan works and plans to advise Congress on what steps should be taken to address the matter, according to a notice of inquiry issued Oct. 22 by the Copyright Office. 77 Fed. Reg. 64,555.

According to the notice, released by Maria A. Pallante, the register of copyrights, the agency, “has long shared the concern with many in the copyright community that the uncertainty surrounding the ownership status of orphan works does not serve the objectives of the copyright system.”

The notice points out that other governmental and international bodies, such as the European Commission, are also taking steps to address orphan rights.

Problem Arises at Intersection of Law, Technology.

Orphan works are works whose copyright holders cannot be identified or contacted by those seeking to make use of those works. The issue has come to the fore particularly with the rise of digital media, including the ongoing litigation involving Google Inc.'s mass digitization of books.

In addition, changes in U.S. copyright law, including those required by the Berne Convention of 1886 for the Protection of Literary and Artistic Works, have contributed to the issue. For example, pursuant to the Berne Convention, the Copyright Act of 1976 removed “formalities,” such as mandatory registration, in order for copyright owners to assert rights in a creation. Also removed were requirements that works bear “notification,” or clear claims of copyrights.

Over the last few years, several bills have been introduced in Congress in an attempt to establish standards for the use of orphan works, but they have made little headway (239 PTD, 12/13/11).

The Copyright Office has also on several occasions in the past urged legislative action on the matter, and it issued a report on orphan works in 2006, capping a “comprehensive study at the request of Congress.

Pallante has asserted that the agency considers the matter a priority (78 PTD, 4/24/12).

Photographs a 'Lion's Share' of the Problem.

The Oct. 22 notice states that although all kinds of creative works are implicated in the orphan works problem, “a significant percentage of the problem, if not the lion's share, involves orphan photographs.”

According to the notice, the relatively large numbers of works created by photographers, and the ease at which identifying information can be separated from images, makes the problem of identifying copyright holders particularly acute.

The notice detailed the 2006 recommendations, as well as intervening legislative proposals, and the Google Books litigation. The report also mentioned a recent decision in the HathiTrust Digital Library dispute, which declined to consider as unripe the infringement claims of copyright holders regarding a plan by a consortium of libraries to make orphan works accessible to the public in digital form Authors Guild Inc. v. HathiTrust, No. 1:11-cv-06351 (S.D.N.Y. Oct. 10, 2012) (197 PTD, 10/12/12).

In the initial stage of the inquiry, the Copyright Office is seeking comments on two broad topics: “orphan works on an occasional or case-by-case basis” and “orphan works in the context of mass digitization.”

Under the first topic, the agency seeks views on the appropriate standards for permitting use of a work by an individual who has conducted a reasonable, good faith, diligent search for a copyright holder and is unable to make contact in order to seek authorization for a use.

The second topic seeks to address the Google Books situation, and asks for input on the crossover of the orphan works issue and mass digitization, including suggestions for legal standards on when and how it should be permitted.

Comments are due Jan. 4. Reply comments are due Feb. 4.

Notice at

By Anandashankar Mazumdar