Thoughts on the Copyright Office Report and Orphan Works

Posted June 18, 2015

Authors Alliance Co-Founder Pamela Samuelson

The Copyright Office report on Orphan Works and Mass Digitization is an important step in the long road toward resolving the orphan works problem and seeing more of our cultural and intellectual heritage made accessible to the public and to authors who want to build upon this heritage.

Authors Alliance commends the Copyright Office for the serious attention it has given to this issue. We were glad to see that the Office regards the orphan work problem as “widespread and significant” and in need of policy resolution. We commend the Office for endorsing that the orphan work solution should apply to all types of works, all types of uses, and all types of users. We were pleased also to see that the Office accepts that fair use is and should be part of the solution to this problem and that the limitation on liability approach the Office proposes can co-exist with fair use as a solution to the orphan works problem in the United States.

Nevertheless, I am left with three reservations about the proposal: First, the Office proposes to condition eligibility for the limitation on liability approach on the user’s filing a very detailed notice of intent to use with the Copyright Office, which must include a description of the search conducted for the rights holder as well as what the intended uses are before any uses have been made. This may not be unduly cumbersome for major copyright industry firms, but for individual authors, particularly those whose motivation to write is more focused on contributing to knowledge than to make a lot of money, the notice-of-intent-to-use may be too difficult to comply with, particularly if the number of orphans that, say, an historian or anthropologist might want to use is substantial and if the exact nature of the uses have yet to be determined. The Office’s 2006 report did not include the notice-of-intent-to-use requirement.

Second, we should be concerned with the central role that the Office intends to play in developing standards for diligent searches for rights holders. Given the wide variety of works, users and uses that will be affected by the proposal, a one-size-fits-all search standard set by the Office may not provide the flexibility that would be desirable. Of course, a diligent search for rights holders should be required, and those who undertake lame searches should not qualify for limits on liability, but searches should be reasonable in light of the circumstances. A major motion picture studio that wants to make a movie of an orphaned short story should have to make a more rigorous search than an academic author who wants to use orphan works in a research project.

Third, it was disappointing that the Office was somewhat skeptical about the utility of codes of best practices for making fair uses of orphan works. These codes have been adopted through a rigorous and conscientious community processes, and provide greater guidance about fair use than can be had simply by studying the fair use case law.

Tackling problems of this scale is far from easy, but I am hopeful that, with the participation of Authors Alliance and other stakeholders, a fair and viable solution will not prove too far off.