1 proposed legislation on orphan works: solving the problem or escalating the crisis? denise troll...
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Proposed Legislation on Orphan Works:
Solving the Problem or Escalating the Crisis?
Denise Troll CoveyCarnegie Mellon University Libraries
EDUCAUSE Live! webcast – July 6, 2006
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U.S. Copyright Office Notice of Inquiry
• Are orphan works “being needlessly removed from access & their dissemination inhibited”?
• Are “inappropriate burdens” imposed on users?
• Should something be done?
0%
25%
50%
75%
100%
721 Initialcomments
146 Replycomments
Experience No
Yes NIMBY
January 26, 2005
May 9 March 25
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Public roundtables Topics
Definition
• Registries
Consequences
Reclaiming
• International
0
5
10
15
20
25
30
35
DC CA
Illustrators
Photographers
Authors
Film
Music
Book publishers
Rights organizations
Other
Cultural heritage
2 days
1 day
July & August 2005
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Viable definition drives solution
“Overloading the boat”
Case–by–case Hybrids Categorical
• © owner cannot be identified
• © owner cannot be found
• © owner does not respond
• © owner uncertain of ownership– Grants or denies permission anyway
Publishers, photographers, authors, illustrators, film, music
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Viable solution drives definition
• Meet certain threshold requirements = orphan – Age of work?
– Print status?
– Non–profit use only?
– Registration to opt out?
Case–by–case Hybrids Categorical
“Don’t embroider the existing situation.
Do something to benefit the citizenry.”
Libraries, archives, museums, Creative Commons
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Consequences
• How long does an orphan designation endure?– Until the © owner comes forward
– In perpetuity
• What use does an it enable?– A particular use by a particular user
– Any use by any user
• To what does it apply? – The work
– The use
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What should be done?
72%
90%
0% 25% 50% 75% 100%
721 Initialcomments
146 Replycomments
Nothing
Limited remedies
Public domain
No change Limited remedies Public domain
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Reclaiming
• Different remedies for different users & uses?
• How compensate the © owner? – Issues with case–by–case approach
• Who proves reasonableness?• No attorney fees? No statutory damages? • Cap? Royalty? Who & how determine fee?• How budget for large projects?
– Issue with categorical approaches• Take–down option would constitute free use• Default fee could be too low
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Recommended legislation
• Each potential user must perform a “good faith, reasonably diligent search to locate the owner”– If search is unsuccessful, user may use the work
with attribution to author & © owner if appropriate
– If © owner comes forward & user’s search is found to be reasonable, then limited remedies apply
• Limited monetary relief with exception
• Limited injunctive relief with qualifiers
• Limited remedies terminate after 10 years to “allow” examination
February 2005
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HR 5439 Orphan Works Act 2006
• Adopts recommendations with few changes
• Requires Copyright Office to
– Receive, maintain, & make publicly available
information to guide searches
– Study effects & report by Dec 12, 2014
– Conduct public inquiry on remedies for small
copyright claims & report by June 1, 2009
• Addresses cases of immunity
May 22, 2006
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Concern: begging the question
• Notice of Inquiry invited definitions, but assumed definition as owner can’t be located
• Report contains conflicting definitions– Parent of the work is unlocatable or unavailable
• Locate (find) – onus is on user• Available (accessible) – onus is on © owner
• Recommendation & HR 5439 adopt definition assumed in Notice of Inquiry
– Necessitates reasonable effort approach
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Occurrences of “reasonable”Section 2 Limitations on remedies No.
(a)(1) Conditions 4
(a)(2)(B) Requirements for reasonably diligent search
8
(a)(2)(C) Information to guide searches 4
(b)(1) Monetary relief 4
(b)(2) Injunctive relief 4
(b)(3) Reasonable compensation 3
TOTAL 27
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Reasonably diligent search 8
Reasonable compensation 6
Reasonable under the circumstances 4
Reasonably available expert assistance 2
Reasonably available technology 2
Reasonable degree of certainty 1
Reasonably available to users 1
Reasonable attorney’s fee 1
Reasonable willing buyer 1
Reasonable willing seller 1
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Attribution
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Concern: ambiguity • Definition or tautology?
– “A search to locate the owner of an infringed copyright in a work is ‘reasonably diligent’ only if it includes steps that are reasonable under the circumstances . . . .”
• Guideline or tongue twister?– “A reasonably diligent search includes the use
of reasonably available expert assistance & reasonably available technology, which may include, if reasonable under the circumstances, resources for which a charge or subscription fee is imposed.”
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Who determines . . .
• If search was, or compensation is, reasonable?– Under what circumstances?
• If expert assistance or technology is reasonably available to users?– Who identifies expert assistance & technology?
• If buyer & seller are reasonably willing?
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How respond to uncertainty?
Two schools of thought:
– Risk is reduced by limited remedies
• If search is found to be reasonable
– Risk will have chilling effect
• Orphan Works Act will
go the route of fair use
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Concern: passing the buck
• HR 5439 passes the buck on removing obstacles to locating © owners to industries & associations – No incentive to develop tools (no fee, small claims)
– Difficulty & cost of developing tools
– Without tools, limited incentive for © owners to make themselves “known & accessible”
• HR 5439 removes significant obstacle to use in return for significant user investment
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Random, feasibility study
Fine & rare books study
Publisher Title Publisher Title
Permission granted $228 $197 $251 $65
Permission granted plus not located (OW)
$129 $109 $147 $54
Permission granted plus not located plus no response
$81 $67 $138 $50
Concern: cost & scale
Few titles per publisher
Many titles per publisher
Transaction costs per book
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Concern: burden
• No burden on © owners – Retain right to waste user investment– No recognition that © owners can appreciate use
or free ride on markets created by users
• Significant burden on industries & associations
• Some burden on Copyright Office – Not a one–stop–shop for users
• Tremendous burden on users– Users pay cost of conducting & documenting
searches + likely the cost of tool development
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Concern: missed opportunities
• Reconsider the © term – Federal government knew that the 1976 CTEA
would exacerbate the orphan works problem
• Provide solution commensurate with the problem – Likely that orphan works
will be created at a faster rate than they can be preserved, disseminated, & used
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0
1,000,000
2,000,000
3,000,000
4,000,000
5,000,000
6,000,000
1923-1929
1930-1939
1940-1949
1950-1959
1960-1969
1970-1979
1980-1989
1990-1999
Books published in English in the United States (WorldCat)Books for which copyright owner cannot be locatedBooks for which presumed copyright owner does not respondBooks out-of-print
Estimates based on results
of random sample feasibility study
conducted at Carnegie Mellon
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Commendable
• Public process & sequence of events
• Legislation likely to enable all types of uses
of all types of works by all types of users
under certain conditions
• Better than expected,
but not as good as it gets
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M I S S I N G
Library Coalition for Identified Missing Parents & Recovery of Apparently Neglected Children
1-800-SHARE-IDwww.missingparents.org
Publisher ALast known addressReasonable search
Publisher BLast known addressReasonable search
Author CLast known addressReasonable search
Estate DLast known addressReasonable search
How leverage the opportunity?
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Orphan Works Act of 2006
would take effect June 1, 2008
© Denise Troll [email protected]
First right of publication: EDUCAUSE
Images from stock.xchng