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Orphan Works and Fair Use in a Digital Age

The following is a guest post by Matthew Braun, Legal Reference Specialist at the Law Library of Congress.

On December 12, 2011, the Copyright Clearance Center, a global broker for copyrighted material, presented a program titled Orphan Works and Fair Use in the Digital Age.  This program featured separate question and answer sessions with Maria Pallante, the 12th Register of Copyrights and Director of the U.S. Copyright Office; Victor Perlman, General Counsel for the American Society of Media Photographers; and Cecilia Kang, a national technology reporter for The Washington Post.  The program was moderated by Christopher Kenneally of the Copyright Clearance Center.

As a librarian with a background in intellectual property law and a strong appreciation for Title 17 of the United States Code, I found this program on some of the hottest topics in copyright to be very interesting and informative; so interesting that I subsequently gave a Power Lunch presentation on the program to my colleagues at the Law Library of Congress.

In the first question and answer session, Maria Pallante told the audience that one of the top initiatives of the U.S. Copyright Office is to facilitate updates to the Federal law on orphan works.  Orphan works are copyrighted works for which the copyright owner cannot be found despite a good faith search by a copyright user.  If the copyright owner is later identified and sues the user for copyright infringement, under 17 U.S.C. 504 the user may be liable for thousands of dollars in actual or statutory damages.

Ms. Pallante noted that the Copyright Office, beginning with its January 2006 Report on Orphan Works, has encouraged legislation in Congress that (1) clearly delineates steps a potential copyright user may take to legally proceed with the use of copyrighted material in the absence of an indentifiable copyright owners, and (2) if the copyright owner is later found, provides a structure for reasonable licensing fees for use of the material.  Ms. Pallante explained that such legislation would require copyright users and owners to be equal participants in the solutions to orphan works matters.

Ms. Pallante also spoke on the uniqueness of the fair use doctrine within U.S. copyright law, emphasizing that in this current era of mass digitization efforts to preserve copyrighted material must be balanced against the question of which parties should be permitted to grant access to this material.  She cited both the March 2008 Section 108 Study Group Report (which was co-sponsored by the U.S. Copyright Office and suggested ways that U.S. copyright law may be updated to account for digital preservation by libraries) and the Copyright Office’s October 2011 Legal Issues in Mass Digitization: A Preliminary Analysis and Discussion Document, as illustrating the importance of fair use considerations in the context of emerging technology.

In the second session, Victor Perlman focused on the problem orphan works present for professional photographers.  Mr. Perlman explained that photographs on the Internet often have their own copyright ownership information stripped from them, despite the various metadata options available in the digital environment.  Therefore, photos are copied and shared among websites with no regard for the copyright owner.

Mr. Perlman noted that roughly 80% of the images on the Internet are unauthorized, and that this significantly devalues the intellectual property interests of photographers as they navigate through a difficult financial time for their profession.  Mr. Perlman, however, praised the Copyright Office’s leadership in supporting a proactive and collectivist model to deal with orphan works, given that copyright disputes in the U.S. have traditionally been addressed through long and expensive litigation in Federal court.

The program shifted gears in the third session, where Cecilia Kang spoke on the anti-piracy legislation that is currently being considered in both chambers of Congress, namely the Stop Online Piracy Act (introduced in the House of Representatives as H.R. 3261) and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property (PROTECT IP) Act of 2011 (introduced in the Senate as S. 968).  Ms. Kang explained that these bills require action by Internet search providers, search engines, and online payment services, for instance, to take down links to foreign websites that are directed at U.S. Internet users and contain material that infringes upon U.S. copyrights.

Ms. Kang also noted that two recently introduced anti-piracy bills, both known as the Online Protection and Enforcement of Digital Trade (OPEN) Act, S. 2029 and H.R. 3782, do not contain the takedown provisions of the Stop Online Piracy Act and PROTECT IP Act, but focus on stopping the transfer of money to foreign websites containing material infringing on U.S. copyrights.

Ms. Kang explained that the well-publicized controversy surrounding these bills comes from the belief that the Internet is a borderless tool that should not be restricted.  Maria Pallante then added that restricting the Internet is not the goal of these bills, but rather, as with orphan works, the goal is the participation of all capable parties to stop copyright infringement.

A video of the Orphan Works and Fair Use in the Digital Age program is currently available, and the Copyright Clearance Center will be sponsoring a day-long program titled “OnCopyright 2012: Advancing the Creative Economy” on March 30, 2012, at the Kernochan Center for Law, Media, and the Arts at Columbia Law School in New York City.

2 Comments

  1. John Cannan
    February 27, 2012 at 4:39 pm

    What a brilliant explanation of this contentious issue. Great work!

  2. Carl Kayfeld
    March 14, 2012 at 5:23 pm

    I am wondering if we should at least be a little suspicious of the CCC, a notorious rights based agency, supporting and moderating these programs? CCC is footing some of the bill for the legal fees of the publishers suing U of Georgia for their e-reserves system. An e-system that allowed some fair use of works through the expert use by librarians and staff of the fair use checklist. This company clearly want to help restrict fair use, regardless of the language of tbe statute. Should they really be sponsoring talks and sitting with the Register with such a clear anti-fair use agenda?

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