1. 1 Proposed Legislation on Orphan Works: Solving the Problem or Escalating the Crisis? Denise Troll Covey Carnegie Mellon University Libraries EDUCAUSE Live! webcast – July 6, 2006

2. 2 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? January 26, 2005 May 9March 25

3. 3 Public roundtables Topics Definition Registries Consequences Reclaiming International 2 days 1 day July & August 2005

4. 4 Viable definition drives solution “Overloading the boat” Case–by–caseHybridsCategorical © 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

5. 5 Viable solution drives definition Meet certain threshold requirements = orphan –Age of work? –Print status? –Non–profit use only? –Registration to opt out? Case–by–caseHybridsCategorical “Don’t embroider the existing situation. Do something to benefit the citizenry.” Libraries, archives, museums, Creative Commons

6. 6 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

7. 7 What should be done? No changeLimited remediesPublic domain

8. 8 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

9. 9 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

10. 10 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

11. 11 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

12. 12 Occurrences of “reasonable” Section 2Limitations on remediesNo. (a)(1)Conditions4 (a)(2)(B)Requirements for reasonably diligent search 8 (a)(2)(C)Information to guide searches4 (b)(1)Monetary relief4 (b)(2)Injunctive relief4 (b)(3)Reasonable compensation3 TOTAL27

13. 13 Reasonably diligent search8 Reasonable compensation6 Reasonable under the circumstances4 Reasonably available expert assistance2 Reasonably available technology2 Reasonable degree of certainty1 Reasonably available to users1 Reasonable attorney’s fee1 Reasonable willing buyer1 Reasonable willing seller1 27 Attribution

14. 14 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.”

15. 15 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?

16. 16 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

17. 17 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

18. 18 Random, feasibility study Fine & rare books study PublisherTitlePublisherTitle 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

19. 19 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

20. 20 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

21. Estimates based on results of random sample feasibility study conducted at Carnegie Mellon

22. 22 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

23. 23 M I S S I N G Library Coalition for Identified Missing Parents & Recovery of Apparently Neglected Children 1-800-SHARE-ID www.missingparents.org Publisher A Last known address Reasonable search Publisher B Last known address Reasonable search Author C Last known address Reasonable search Estate D Last known address Reasonable search How leverage the opportunity?

24. 24 Orphan Works Act of 2006 would take effect June 1, 2008 © Denise Troll Covey troll@andrew.cmu.edu First right of publication: EDUCAUSE Images from stock.xchng