U.S. Government Report on Orphan Works and Mass Digitization
In June 2015, the U.S. Government issued a comprehensive report on Orphan Works and Mass Digitization. The report addresses two areas that may affect many users and many different types of uses of copyright-protected content, as well as the owners of those works. Orphan works is defined as those works whose owners cannot be identified or cannot be located. In both circumstances, users of content are unable to obtain permission to use the works. These users may make a fair use analysis of their use and undertake any necessary risks or choose to use alternative content.
With respect to mass digitization which involves making reproductions of many works, and possible efforts to make the works publicly accessible, the Report states that “obtaining permission is essentially impossible, not necessarily because of a lack of identifying information or the inability to contact the copyright owner, but because of the sheer number of individual permissions required.”
Is there a Solution to Orphan Works?
The report reviews previous efforts by the Copyright Office to find a solution to the orphan works issue, looks at various possible solutions, and reviews solutions undertaken in other countries. In conclusion, the Office states that the orphan works problem is “widespread and significant.” The report states that “anyone using an orphan work does so under a legal cloud, as there is always the possibility that the copyright owner could emerge after the use has commenced and seek substantial infringement damages, an injunction, and/or attorneys’ fees. While some users certainly may have viable defenses on fair use or other grounds, many will choose to forego use of the work entirely rather than risk the prospect of expensive litigation.”
Lots of Great Background Information on Orphan Works
The Report is a comprehensive study of the issues, history in the U.S., international comparisons, complete with recommendations and much more. The appendices themselves are valuable for anyone studying the area including sections on an Orphan Works Legislation Discussion Draft and Section-by-Section Analysis, and Comparative Summaries of U.S. Orphan Works Legislative Proposals, Select Orphan Works Provisions (in other countries) and Select Extended Collective Licensing Provisions.
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