[Federal Register: January 26, 2005 (Volume 70, Number 16)]
[Notices]
[Page 3739-3743]
AGENCY: Copyright Office, Library of Congress
ACTION: Notice of inquiry
The Copyright Office seeks to examine the issues raised by “orphan works,” i.e., copyrighted works whose owners are difficult or even impossible to locate. Concerns have been raised that the uncertainty surrounding ownership of such works might needlessly discourage subsequent creators and users from incorporating such works in new creative efforts or making such works available to the public. This notice requests written comments from all interested parties. Specifically, the Office is seeking comments on whether there are compelling concerns raised by orphan works that merit a legislative, regulatory or other solution, and what type of solution could effectively address these concerns without conflicting with the legitimate interests of authors and right holders.
Written comments must be received in the Copyright Office on or before 5 p.m. EST on March 25, 2005. Interested parties may submit written reply comments in direct response to the written comments on or before 5 p.m. on May 9, 2005.
All submissions should be addressed to Jule L. Sigall, Associate Register for Policy & International Affairs. Comments may be sent by regular mail or delivered by hand, or sent by electronic mail to the e-mail address [email protected] (see file formats and information requirements under supplemental information below). Those sent by regular mail should be addressed to the U.S. Copyright Office, Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, DC 20024. Submissions delivered by hand should be brought to the Public Information Office, U.S. Copyright Office, James Madison Memorial Building, Room LM-401, 101 Independence Avenue, SE., Washington, DC 20540.
Mary Rasenberger, Policy Advisor for Special Programs, Copyright GC/I&R, PO Box 70400, Southwest Station, Washington, DC 20024-0400. Telephone (202) 707-8350; telefax (202) 707-8366.
1. If by electronic mail: Send to orphanworks@loc.gov a message containing the name of the person making the submission, his or her title and organization (if the submission is on behalf of an organization), mailing address, telephone number, telefax number (if any) and e-mail address. The message should also identify the document clearly as either a comment or reply comment. The document itself must be sent as a MIME attachment, and must be in a single file in either: (1) Adobe Portable Document File (PDF) format (preferred); (2) Microsoft Word 2000 or earlier; (3) WordPerfect 8.0 or earlier; (4) Rich Text File (RTF) format; or (5) ASCII text file format.
2. If by regular mail or hand delivery: Send, to the appropriate address listed above, two copies of the comment, each on a 3.5-inch write-protected diskette, labeled with the name of the person making the submission and, if applicable, his or her title and organization. Either the document itself or a cover letter must also include the name of the person making the submission, his or her title and organization (if the submission is on behalf of an organization), mailing
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address, telephone number, telefax number (if any) and e-mail address (if any). The document itself must be in a single file in either (1) Adobe Portable Document File (PDF) format (preferred); (2) Microsoft Word 2000 or earlier; (3) WordPerfect Version 8.0 or earlier; (4) Rich Text File (RTF) format; or (5) ASCII text file format.
3. If by print only: Anyone who is unable to submit a comment in electronic form should submit an original and two paper copies by hand or by mail to the appropriate address listed above. It may not be feasible for the Copyright Office to place these comments on the Office's Web site.
The Copyright Act of 1976 made it substantially easier for an author to obtain and maintain copyright in his or her creative works. Today, copyright subsists the moment an original work of authorship is fixed in a tangible form--it need not be registered with the Copyright Office or published with notice to obtain protection. While registration of claims to copyright with the Copyright Office is encouraged and provides important benefits to copyright holders, it is not required as a condition to copyright protection. Under the 1909 Act, renewal registration was required to maintain protection beyond an initial 28-year term. Failure to register the renewal during the last year of the first term resulted in complete loss of protection. The 1976 Act removed the renewal requirement going forward, but kept it for works copyrighted before 1978. It was not until 1992 that the renewal requirement was abolished altogether. These changes, as well as other changes in the 1976 Act and in the Berne Convention Implementation Act of 1988, were important steps toward harmonizing U.S. copyright law with international treaties. Specifically, the Berne Convention and other treaties dealing with copyright that have followed forbid the imposition of formalities as a condition to copyright, principally on the grounds that failure to comply with formalities can serve as a trap for the unwary, resulting in the inadvertent loss of copyright.\1\
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\1\ The Berne Convention article 5(2) “no formalities” requirement has been incorporated by reference into both the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”), and the WIPO Copyright Treaty (“WCT”). See Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, art. 9.1, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments--Results of the Uruguay Round vol. 31, 33 I.L.M. 81, 87 (1994); WIPO Copyright Treaty, Apr. 12, 1997, art. 3, S. Treaty Doc. No. 105-17 (1997), 36 I.L.M. 65, 69 (1997). The WIPO Performances and Phonograms Treaty (“WPPT”) contains an express “no formalities” provision without reference to the Berne Convention. See WIPO Performances and Phonograms Treaty, Apr. 12, 1997, art. 20, S. Treaty Doc. No. 105-17 (1997), 36 I.L.M. 76, 80 (1997).
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Concerns have been raised, however, as to whether current copyright law imposes inappropriate burdens on users, including subsequent creators, of works for which the copyright owner cannot be located (hereinafter referred to as “orphan”' works). The issue is whether orphan works are being needlessly removed from public access and their dissemination inhibited. If no one claims the copyright in a work, it appears likely that the public benefit of having access to the work would outweigh whatever copyright interest there might be. Such concerns were raised in connection with the adoption of the life plus 50 copyright term with the 1976 Act and the 20-year term extension enacted with the Sonny Bono Copyright Term Extension Act of 1998.
The Copyright Office has long shared these concerns about orphan works and has considered the issue to be worthy of further study. On January 5, Senators Orrin Hatch and Patrick Leahy of the Senate Judiciary Committee asked the Register of Copyrights to study this issue and to report to the Senate Judiciary Committee by the end of the year. Also in January, Reps. Lamar Smith and Howard Berman, the chairman and ranking member of the House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property, sent letters to the Register supporting this effort. The Office is gratified that Congress has shown an interest in this important issue and is pleased to assist Congress in its efforts to learn more about the problem and to consider appropriate solutions.
Prior to the 1976 Act, the term of protection was limited to 28 years if the copyright was not renewed. Under this system, if the copyright owner was no longer interested in exploiting the work, or a corporate owner no longer existed, or, in the case of individual copyright owners, there were no interested heirs to claim the copyright, then the work entered the public domain. Of course, it also meant that some copyrights were unintentionally allowed to enter the public domain, for instance, where the claimant was unaware that renewal had to occur within the one year window at the end of the first term or that the copyright was up for renewal. The legislative history to the 1976 Act reflects Congress' recognition of the concern raised by some that eliminating renewal requirements would take a large number of works out of the public domain and that for a number of those older works it might be difficult or impossible to identify the copyright owner in order to obtain permissions. Congress nevertheless determined that the renewal system should be discarded, in part, because of the “inadvertent and unjust loss of copyright” it in some cases caused.\2\ More recently, in the mid-1990s, Congress heard concerns that the Copyright Term Extension Act would exacerbate problems in film preservation by maintaining copyright protection for older motion pictures for which the copyright owner is difficult to identify.\3\ Also, in our study on Digital Distance Education published in 1999, the Copyright Office identified several “problems with licensing” that educators asserted in attempting to use copyrighted materials in digital formats, including that “it can be time-consuming, difficult or even impossible to locate the copyright owner or owners.” \4\
A situation often described is one where a creator seeks to incorporate an older work into a new work (e.g., old photos, footage or recordings) and is willing to seek permission, but is not able to identify or locate the copyright owner(s) in order to seek permission. While in such circumstances the user might be reasonably confident that the risk of an infringement claim against this use is unlikely, under the current system the copyright in the work is still valid and enforceable, and the risk cannot be completely eliminated. Moreover, even where the user only copies portions of the work in a manner that would not likely be deemed infringing under the doctrine of fair use, it is asserted by some that the fair use defense is often too unpredictable as a general matter to remove the uncertainty in the user's mind.
Some have claimed that many potential users of orphan works, namely individuals and small entities, may not have access to legal advice on these issues and cannot fully assess risk themselves. Moreover, even if they are able to determine with some certainty that there is little or no risk of losing a lawsuit, they may not be able to afford any risk of having to bear the cost of defending themselves in litigation.
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\2\ H.R. Rep. No. 94-1476, at 134 (1976).
\3\ Letter from Larry Urbanski, Chairman, American Film Heritage Association, to Senator Strom Thurmond Opposing S. 505 (Mar. 31, 1997), available at http://homepages.law.asu.edu/~dkarjala/OpposingCopyrightExtension/letters.html (stating that as much as 75% of motion pictures from the 1920s are no longer clearly owned by anyone, and film preservationists as such cannot obtain the necessary permissions to preserve them).
\4\ See Register of Copyrights, Report on Copyright and Digital Distance Education 41-43 (1999).
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Given the high costs of litigation and the inability of most creators, scholars and small publishers to bear those costs, the result is that orphan works often are not used--even where there is no one who would object to the use.
This uncertainty created by copyright in orphan works has the potential to harm an important public policy behind copyright: To promote the dissemination of works by creating incentives for their creation and dissemination to the public. First, the economic incentive to create may be undermined by the imposition of additional costs on subsequent creators wishing to use material from existing works. Subsequent creators may be dissuaded from creating new works incorporating existing works for which the owner cannot be found because they cannot afford the risk of potential liability or even of litigation. Second, the public interest may be harmed when works cannot be made available to the public due to uncertainty over its copyright ownership and status, even when there is no longer any living person or legal entity claiming ownership of the copyright or the owner no longer has any objection to such use.