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Orphan Works comment 0691

Nafur - Bruce Funkhouser

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UNITED STATES COPYRIGHT OFFICE NOTICE OF INQUIRY CONCERNING ORPHAN WORKS Published at 70 Fed. Reg. 3739 (January 26, 2005) -------------------------- WRITTEN COMMENTS OF COPYRIGHT CLEARANCE CENTER, INC. March 25, 2005 -------------------------- I. INTRODUCTION Copyright Clearance Center, Inc. (“CCC”), submits these written comments in response to the request of the Copyright Office set forth in its Notice published at 70 Fed. Reg. 3739 (January 26, 2005) in connection with the issue of orphan works. CCC is currently engaged in the centralized licensing of text-based copyrighted materials, on behalf of rightsholders, to users of all kinds, including academic, business and government organizations; in the course of our business, we regularly need to address rights and royalties relating to what the Copyright Office has characterized in its Notice as orphan works. Because we are highly experienced in conducting rights-related research, and have substantial relationships with many parties involved in producing text-based works, our research efforts often reveal that orphan works are no more than “temporarily lost works” for which “parents” can be found. CCC believes that establishing a voluntary works/ownership Registry, where information about works, rights and rightsholders can be recorded, is a viable choice for the Copyright Office, and that such a Registry can operate without the need for elaborate new ...

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Publié par	Nafur
Nombre de lectures	14
Langue	English

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UNITED STATES COPYRIGHT OFFICE

NOTICE OF INQUIRY

CONCERNING

ORPHAN WORKS

Published at 70 Fed. Reg. 3739 (January 26, 2005)

--------------------------

WRITTEN COMMENTS OF

March 25, 2005

--------------------------

INTRODUCTION

to the request of the Copyright Office set forth in its Notice published at 70 Fed. Reg.

3739 (January 26, 2005) in connection with the issue of orphan works.

CCC is currently engaged in the centralized licensing of text-based copyrighted materials,

on behalf of rightsholders, to users of all kinds, including academic, business and

government organizations; in the course of our business, we regularly need to address

rights and royalties relating to what the Copyright Office has characterized in its Notice

as orphan works.

Because we are highly experienced in conducting rights-related

research, and have substantial relationships with many parties involved in producing text-

based works, our research efforts often reveal that orphan works are no more than

“temporarily lost works” for which “parents” can be found.

CCC believes that establishing a voluntary works/ownership Registry, where information

about works, rights and rightsholders can be recorded, is a viable choice for the

government-operated structures.

For example, CCC’s own existing systems, originally

designed to help rightsholders and users address a relative market failure (how to license

high volumes of low-value transactions around photocopies) that is conceptually similar

to the orphan works issue, have proven that this kind of database-driven Registry is

readily manageable and can serve all parties in an easy, convenient and efficient manner.

Such a Registry would help provide a necessary service in support of the purposes of the

II.

BACKGROUND

CCC was created at the suggestion of Congress in the legislative history of the Copyright

Act of 1976, and has been engaged in the licensing of the copyrighted works of others for

over twenty-five years.

As a not-for-profit corporation established by a group of authors,

publishers and users that had worked with Congress in its revision of the Act, and

continuing to this day (uniquely among collecting societies around the world) with

representatives on our Board of Directors not only from the author and publisher

communities but from user communities as well, CCC has created and maintained

markets that have served all parties effectively and efficiently.

Since we opened our doors in 1978, we have evolved from a single, simple transactional

service – still in use today – by which rightsholders and users can exchange, one-by-one

if they choose, permissions and royalties relating to the licensing of photocopying on an

as-needed basis, to an integrated licensing organization, offering transactional and

repertory licenses for both photocopying and digital uses to business and governmental

organizations, as well as coursepack licensing and digital-use licensing for academic

organizations.

Most recently, we have developed and operate an automated licensing

facility that permits copyright rightsholders to issue licenses to use their materials right

from the point of content on their Websites.

This growth has led us to the point where we

represent over 1.75 million copyrighted works, routinely process over two million indi-

vidual licensing transactions a year (most through our Website at www.copyright.com),

issue repertory licenses to thousands of businesses and other organizations with,

collectively, 15 million employees in the United States, cooperate with counterpart

organizations in other countries to license millions of uses and users abroad, and

anticipate revenues in excess of $130 million in our current fiscal year.

In the course of handling these millions of licensing transactions, our staff of customer

service and bibliographic experts is regularly required to conduct research to connect

“lost works” with their rightsholders, research that is quite frequently successful.

As a

result, we have built up substantial information about how and where to find such

rightsholders efficiently, helping to reduce (though never to eliminate) the problem that a

“lost work” is in fact an “orphan work” .

Our development of these skills, ordinarily

applied to bibliographically identifiable works in the hands of an interested user, suggests

that the similar skills necessary to run a works/ownership Registry are readily available

and can make the operations of such a Registry viable.

We would be pleased to use those

skills, combined with the experience we have gained in developing licensing services that

address users’ needs and general copyright issues on a sophisticated level, to assist the

III.

QUESTIONS FROM THE COPYRIGHT OFFICE

In its January 26 Notice, the Copyright Office set forth groups of questions, answers to

which will help it complete its study of orphan works for Congress.

CCC addresses three

of those groups of questions below and then offers a proposal for a possible structure for

a Registry.

Nature of the Problems Faced by Subsequent Creators and Users

By the nature of its business, CCC frequently receives requests from users (including

creators and other rightsholders seeking to use others’ copyrighted works) for permission

to use works that are unknown to us.

CCC has thus become vastly experienced with the

difficulties faced by creators and other users in the areas of text published in books and

serial publications, and has become a principal resource for information about locating

As discussed in the 1970s within the Commission on New Technological Uses

(“CONTU”) – and probably before – users desiring to be copyright-compliant have

always sought “100% identification” of rightsholders' rights, and yet have continually

encountered difficulties in locating a single rightsholder among the entire field of

potential rightsholders.

Despite advances in Web-based tools, and as described by the

due to the lifting in the United States of its “formalities,” as required upon its 1988

accession to the Berne Convention for the Protection of Literary and Artistic Works (the

"Berne Convention").

CCC's experience in identifying and locating “lost” authors, estates and publishers that

hold rights in bibliographically identifiable works indicates that these tasks can indeed

sometimes entail significant amounts of time and resources.

In our experience, however,

such searches for works likely to be re-used often reveal that the purported “orphan

works” are merely “lost” and that their rightsholders are findable with modest effort by

skilled researchers.

In fact, we are sometimes able to track down rightsholders, some of

them household names doing business under alternate labels, simply as a result of long

experience with changes in rightsholders (sales of catalogues or entire companies,

bankruptcies, deaths and simple changes of residence) plus familiarity with the tools for

locating them.

Nature of “Orphan works”: Publication Status

While U.S. law accords some special status to unpublished works, as described in the

January 26 Notice, it appears to CCC that, particularly in the Internet age (but not only in

the Internet age), whether a work has been “published” in the legal sense is not always

determinable.

When users come to CCC seeking permissions for works, neither they nor

we are always capable of determining whether a work has been published in a legal

sense, but we pursue the rights on behalf of the user in the same way regardless of

publication status.

Based on our experience, it seems most appropriate that any Registry

be agnostic as to the publication status of the works therein contained.

International Implications

The Copyright Office's January 26 Notice raises several valid questions about the impact

that a voluntary Registry might have on U.S. international copyright relations.

However,

CCC believes that the concerns underlying those questions can readily be allayed.

that end, it should be noted that most of the international copyright treaty partners of the

United States already operate involuntary statutory licenses for many forms of

reproduction that are licensed voluntarily in the United States – many without even

offering individual rightsholders a practical right to opt out of application of those

licenses.

Thus, statutory compulsory licensing, either complete or partial, exists in some

countries (including the Netherlands); “extended collective licensing” (which extends

somewhat voluntary licensing structures, involuntarily, to foreign rightsholders and other

“outsiders” to the structures) exists in other countries (including Sweden and Norway);

and forms of umbrella licensing (whereby participation in collective structures is not

quite mandatory but is strongly encouraged through statutory limitations on the rights of

non-participating rightsholders) exist in yet other countries (including the United

Kingdom).

These involuntary systems in other countries explicitly wash away the orphan works

issue altogether, leaving it to government agencies, collecting societies or

“representative” unions and associations to compensate individual rightsholders who are

able to identify themselves as entitled to a share of large pots of money designated in

gross for entire classes of rightsholders, both domestic and foreign.

However, under

these systems rightsholders’ entitlement to exploit their own works has been completely

washed away along with the orphan works issue – a result that is contrary to the ordinary

expectations underlying U.S. intellectual property regimes.

A voluntary Registry is both more respectful of individual rightsholders’ rights – in the

U.S. legal tradition – and in more careful compliance with the Berne Convention’s

restrictions than these systems extant in any of these other countries.

For example,

CCC’s voluntary centralized text licensing systems in the United States offer all

rightsholders and users the option whether or not to participate and options about what

programs to participate in, and also offer rightsholders additional options about what

works to include, and, in our transactional programs, what price to set for each use.

Such

a voluntary system provides all parties with the ability to use CCC’s services as an

adjunct to, rather than a mandatory substitute for, their own in-house, individual licensing

services or arrangements.

A Registry operated on a similar voluntary basis would

maximize users’ access to copyright-cleared materials while also ultimately maximizing

the ability of rightsholders to lay public claim to their works as appropriate, results, we

submit, that are consistent with Berne.

IV.

A POSSIBLE STRUCTURE

CCC believes that a works/ownership Registry would be of significant benefit to both

In our conception, a

voluntary Web-based Registry would, on the one hand, hold information about works,

rights and their rightsholders, and would offer simple search tools for potential users to

locate information that they seek about existing works.

On the other hand, while

searching the Registry alone would and should carry with it no legal presumption of

having completed the necessary diligence in seeking a rightsholder, users would be

invited to record what information they have found both as evidence of their efforts and

as a contribution to a centralized database that would increase the likelihood of finding

rightsholders or, for example, determining a work’s public domain status (by recording

an author’s date of death) – any of which would be a benefit to all users interested in

respecting copyright.

A voluntary Registry would impose a minimal burden on copyright rightsholders and

would require no alteration of the existing copyright registration system, while providing

users with a central source of information (supplemented by the private-sector sources

noted below) that would be directly relevant to finding a rightsholder even when the work

at issue has not been registered in the Copyright Office.

The Registry, being voluntary,

would not require the filing of formal ownership or transfer documents, and yet would

provide users with precisely the information on how to find the rightsholder.

This structure would encourage rightsholders to submit information, and in particular

regularly updated contact information, to help ensure that their works do not fall into the

category of orphans.

While, being voluntary, the Registry would be one possible location

to record such information, so would many other locations where such information is

ordinarily sought by users.

If the point is to avoid having works orphaned, then the

multiplicity of channels that exist in the private sector for the transmission of such

information may in fact be superior to any single location (although the Registry would

inevitably collect much of this data as well).

Further, if establishment of the Registry

were announced with sufficient advance notice before beginning operations, and if it

were publicized widely enough (with the assistance of rightsholder groups and other

industry experts), a substantial number of hitherto-“lost” rightsholders would likely

appear and enter their rights into the Registry's database – even before a user inquires –

itself a step that could go a substantial way towards addressing the orphan works problem

altogether.

While such a Registry would likely start its life with relatively modest

amounts of information, the passage of time and growing confidence in its abilities from

rightsholders and users alike would produce a steady accumulation of information that

would always move in the direction of maximizing the information publicly available

about rights, works and rightsholders.

Two important distinctions between United States law and practice and that of other

countries could then come into play to help minimize some of the concerns expressed by

the Copyright Office in its Notice.

First, it is important that the Registry minimize its

intrusion onto rightsholders’ right to authorize (or refuse to authorize) uses, in keeping

not only with Section 9(2) of the Berne Convention but with the U.S. preference for

voluntary, private action wherever possible in connection with private property rights of

any kind.

To that end, the invitation to record information with the Registry, but not to

make such recordation mandatory, gives any interested party an easy way to invite

interest in a license transaction.

Second, after some years of growth in data and of all

parties’ familiarity with the Registry, the availability of such a voluntary recordation

facility would, from users’ point of view, increase the user’s ability to evaluate the risks

associated with the use of apparently-orphan works and, from rightsholders’ point of

view, increase their ability to assert their rights in a fashion designed to maximize notice

to the world.

CONCLUSION

In its January 26 Notice, the Copyright Office identified a number of issues relating to

orphan works that will require an exquisite amount of balancing of the rights and

privileges of both rightsholders and users, particularly in the context of the international

obligations of the United States.

CCC has, through its voluntary and flexible licensing

services founded on a steady accumulation of rights and rights information, proven that

such a system is both viable and reasonable.

A Registry service, helping users to identify

the rightsholders whose rights they need in order to build new creative works, and

helping rightsholders to publicize their claims to rights in existing creative works, is not

only desirable but susceptible of straightforward design and implementation should the

CCC Contact Information:

Bruce Funkhouser

Vice President

Univers
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