Orphan WorksOrphan WorksFrom Legislation to Private From Legislation to Private

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Paul D. CallisterPaul D. Callister, JD, MSLIS, JD, MSLISDirector of the Leon E. Bloch Law Libraries & Associate Director of the Leon E. Bloch Law Libraries & Associate

Professor of LawProfessor of Law

© 2008, Paul D. Callister. Some rights reserved. See http://creativecommons.org/licenses/by-nc-sa/3.0/us/

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Source: Peter B. Hirtle, Source: Peter B. Hirtle, Copyright Term and the Copyright Term and the Public Domain in the United Public Domain in the United StatesStates, 1 January 2009, , 1 January 2009, available at available at http://www.copyright.cornell.edu/resources/publicdomain.cfm. Licensed under Creative . Licensed under Creative Commons License 3.0 at Commons License 3.0 at http://creativecommons.org/licenses/by-nc/3.0/..

Orphan worksOrphan worksFrom Wikipedia, the free encyclopediaFrom Wikipedia, the free encyclopediaJump to: Jump to: navigation, , search

An An orphan workorphan work is a is a copyright work where it is difficult or work where it is difficult or impossible to contact the impossible to contact the copyright holder. This situation can . This situation can arise for many reasons. The author could have never been arise for many reasons. The author could have never been publicly known because the work was published publicly known because the work was published anonymously or the work may have never been traditionally anonymously or the work may have never been traditionally published at all. The identity of the author could have been published at all. The identity of the author could have been once known but the information lost over time. Even if the once known but the information lost over time. Even if the author is known, it may not be possible to determine who author is known, it may not be possible to determine who inherited the copyright and presently owns it. Nearly any inherited the copyright and presently owns it. Nearly any work where a reasonable effort to locate the current work where a reasonable effort to locate the current copyright owner fails can be considered orphaned. However copyright owner fails can be considered orphaned. However the designation is often used loosely and in some the designation is often used loosely and in some jurisdictions there is no legal definition at all.jurisdictions there is no legal definition at all.

The name "orphan works" refers to "works not The name "orphan works" refers to "works not available in the marketplace at a reasonable price." available in the marketplace at a reasonable price." 151 Cong. Rec. H2114 (daily ed. Apr. 19, 2005) (Statement of 151 Cong. Rec. H2114 (daily ed. Apr. 19, 2005) (Statement of Rep. Berman). Rep. Berman).

Cited in Cited in 2-8 Nimmer on Copyright § 8.03, n.122.18., n.122.18.

http://odeo.com/episodes/23547051-Against-Orphan-Work-reform

http://www.copyright.gov/

H.R. 5439H.R. 5439Orphan Works Act of 2006Orphan Works Act of 2006

• Goes too farGoes too faro For owners of work from 1978 to today – For owners of work from 1978 to today – unfair because relying on “opt out,” “non-unfair because relying on “opt out,” “non-formality” system (how do you fix if you are an formality” system (how do you fix if you are an owner?)owner?)o For owners of foreign worksFor owners of foreign workso For owners of unpublishedFor owners of unpublished

• Doesn’t go far enough – problems of mushy Doesn’t go far enough – problems of mushy “reasonably diligent search”“reasonably diligent search”

o Permanent employment act for lawyersPermanent employment act for lawyerso Permanent cost for libraries and institutionsPermanent cost for libraries and institutionso Permanent uncertainty for usersPermanent uncertainty for users

S.2913 & H.R.5889 S.2913 & H.R.5889 110110thth Congress (2008) Congress (2008)

• Limited damages for infringement to reasonable Limited damages for infringement to reasonable compensationcompensation• For libraries and non-profits, simply required that For libraries and non-profits, simply required that institution cease infringementinstitution cease infringement• Conducted a “qualifying search” using a “diligent Conducted a “qualifying search” using a “diligent effort”effort”

H.R. 5899 (Orphan Works Act of H.R. 5899 (Orphan Works Act of 2009)2009)

S.2913 (Bentley Orphan Works Act)S.2913 (Bentley Orphan Works Act)

“Reasonable and diligent” Search Copyright Office Records

“Best practices” as determined by Registrar of Copyrights

Search reasonably available resources

Timing proximate to infringement Use appropriate technology, printed publications and “internal or external expert assistance.”

Use appropriate databases

S.2913 & H.R.5889S.2913 & H.R.5889110110thth Congress (2008) Congress (2008)

• Limited damages for infringement to reasonable Limited damages for infringement to reasonable compensationcompensation• For libraries and non-profits, simply required that For libraries and non-profits, simply required that institution cease infringementinstitution cease infringement• Conducted a “qualifying search” using a “diligent Conducted a “qualifying search” using a “diligent effort”effort”• No waiver of duty to search if no “identifying No waiver of duty to search if no “identifying information”information”• “ “Notice Use” ArchiveNotice Use” Archive• Database of Pictorial, Graphic and Sculptural Database of Pictorial, Graphic and Sculptural WorksWorks

Sarah Glazer, Sarah Glazer, Future of Books: Will Traditional Print Books Disappear, Future of Books: Will Traditional Print Books Disappear, 19 CQ 19 CQ RESEARCHER , MAY 29, 2009, available at CQ Research Plus Archive.RESEARCHER , MAY 29, 2009, available at CQ Research Plus Archive.

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