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Orphan Works

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Erin Finlay

on 24 February 2015

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Transcript of Orphan Works

Orphan Works
What are orphan works?
Why are orphan works an issue?
What can we do?

copyright-protected works where owner is unknown, unidentifiable or unlocatable
The Common Goal
make the world's books available to anyone with access to a computer
copyright = author's exclusive right to authorize the reproduction of all/substantial part of his work plus user's rights exceptions

when a user cannot locate the copyright owner, and has no exception to rely on, he cannot make protected uses of a work without risk
"The result is a chilling effect where potential users abandon projects, thereby depriving the public of a new, creative work. Large numbers of copyrighted, yet no longer valuable, works go unused despite the facts that their owners would no longer object to their use. This "chilling effect" is disproportionate to the benefit conferred on the few unknown copyright owners who would actually disapprove of the use of their works."
J.O. Mausner

mass digitization projects
Google Books, HathiTrust, Project Gutenberg, the Internet Archive, Carnegie Mellon "One Million Book Digital Library Project", Gallica and Europeana
preservation and dissemination of cultural and intellectual heritage through digital libraries
big push for orphan works solutions from libraries, esp. university libraries
looking for:
legal certainty
low transaction costs

barrier to technological advancement?
one area of copyright law where nearly all stakeholders agree that a significant policy problem exists
BUT
solutions are contentious
1. Legislative solution: create an exception
The Google Books Settlement

Google Book Rights Registry
market-based solution: copyright owners and users agreed
liability shift
efficient
low transaction costs
2. Court cases
Critiques:
time - spectacularly slow process to amend legislation
no certainty
doesn't this risk increasing the # of orphan works? little incentive to try to find the author/owner?
contrary to public policy?
diligent search can be cumbersome
who should search? what is diligent?
Critiques:
time - spectacularly slow process
expensive
doesn't serve the public - only the parties to the litigation
backwards-looking
from a policy perspective, do we want to encourage people to infringe first and fight it out in court? clarity is better
class action -- attempt to bind the world
why might you not be able to identify or locate the copyright owner?
no formalities for copyright to subsist
no identifying info (photographs)
stripping of identifying info/metadata
change of ownership/numerous bankruptcies & reorgs
lack of ownership information sources
long copyright terms
ease of transferability
complicated transfers (eg. rights reversions)
advances in technology -- non-traditional fixation
poor contracts, particular re. digital rights between authors and publishers
How big is the problem?
European Commission: est. 13% of published in-copyright books (=3 million books)
19% of books (Carnegie Mellon)
40% of books (British Library)
1 in 5 books (Google)
photographs - higher
Hathi Trust, Google
Limited Liability Exception
ex. U.S. Copyright Office's Report on Orphan Works & Shawn Bentley Orphan Works Act (2008)
limitation on damages if a user can prove:
performed a good faith diligent search for the owner
was unable to locate the owner
provided reasonable attribution; and
included notice of his use
damages limited to future injunction or "reasonable compensation"
Complete Exception where diligent search performed
2. Existing exceptions - Canada
Copyright Board unlocatables licence
"reasonable efforts" to locate the owner required
What should we do?
"To be unable to find a book's rightsholder is a misfortune, but to compound that misfortune by blocking a settlement that offers the best prospect for both finding those copyright owners and resurrecting their books if they cannot be found, would be sheer antitrust carelessness".
E. Elhauge
Erin Finlay
General Counsel, Access Copyright
Full transcript