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Copyright Corner

Orphan works
By Eric S. Slater, Esq., Manager, Copyright, ACS Publications Division

In the March 2006 issue of LiveWire, I wrote about the Section 108 Study Group and possible revisions that may be made to the library exceptions in the U.S. Copyright Act; I have nothing new to report on that issue at this point. However, another area currently under review by the U.S. Copyright Office is the so-called orphan works issue. Potential new legislation in this area would pave the way for the use of many works that might otherwise not be used due to reluctance to tempt fate—that is, where the risk of infringement outweighs the benefits of use.

In January 2005, the U.S. Copyright Office, via notice in the Federal Register (www.copyright.gov/fedreg/2005/70fr3739.html), sought written comments on the issue. It describes orphan works as copyrighted works whose owners are difficult or impossible to locate. In January 2006, the U.S. Copyright Office issued a lengthy (207-page) report on the subject, the result of a study and roundtable discussions held during 2005 (full report available at www.copyright.gov/orphan/orphan-report-full.pdf). I won’t go into detail here, but I do want to discuss what this report means in terms of seeking permission to use such works. It can create a conundrum when a user wants to do the right thing by seeking permission to repurpose a copyrighted work but cannot track down the copyright owner. What should the user do at that point?

The U.S. Copyright Office recognizes the issues inherent in this topic because of “concerns [having] been raised that the uncertainty surrounding ownership of such works might needlessly discourage subsequent creators and users from incorporating such works in new creative efforts, or from making such works available to the public” (www.copyright.gov/orphan/). Other countries—Canada and the United Kingdom included—have successfully passed legislation in this area, and the United States seeks to follow that lead in the spirit of globally harmonizing certain aspects of copyright law.

The scenario can go something like this. You are preparing a manuscript for submission to a journal or are in the process of writing a book and want to obtain permission for material (e.g., figures, tables, text, photographs, or illustrations) that is still under copyright. You are unable to locate or identify the copyright owner to obtain permission; what do you do next? Do you accept the risk inherent in using the content anyway, thereby infringing another person’s work, or do you exclude it and seek an alternative? Would fair use or other limitations on copyright apply in such a situation?

From a permissions standpoint, my office at ACS always advises authors that if they cannot obtain permission, they should omit the particular content. Using content without permission is not worth the risk where infringement is likely. I imagine many readers of LiveWire have run into this problem. Passage of orphan works legislation would provide a legal solution and make life a bit easier for permissions offices!

The U.S. Copyright Office hopes that the 2005 study and roundtable hearings mentioned earlier as well as legislative sessions will lead to a new section in the U.S. Copyright Act that specifically addresses orphan works, thus limiting the liability of authors who use such works. The Association of American Publishers (AAP; the trade association that represents many American publishers) is heavily involved in the legislative process and recently issued a statement at a House hearing in support of such legislation. A summary is found at the AAP Web site (www.publishers.org/press/releases.cfm?PressReleaseArticleID=318). The main aspects of potential legislation are that users of copyrighted content should conduct a “reasonably diligent” search (which has not yet been defined and represents a more controversial aspect in how legislation will be worded) for the copyright owner and that if the copyright owner were to come forward later, the user would not be liable for copyright infringement. The copyright owner would have certain remedies, such as injunctive relief (to make the user cease using the work) or the ability to negotiate a licensing arrangement with the user (for purposes of remuneration). Use of the content would not be subject to the usual penalties for copyright infringement, which can be quite steep—especially in cases where infringement is found to be willful.

This discussion is by no means designed to be a complete analysis of the issues. In addition to the U.S. Copyright Office’s lengthy report, one Congressional hearing has already taken place on the topic. Surely, more developments are to come, although the legislative process is moving rapidly in this area.

I hope to have adequately summarized the main points of the orphan works issue. As always, I encourage savvy readers to learn more on their own, via the links provided or via personal research. As this issue becomes more crystallized—inevitably leading to new legislation—I will keep you informed of developments as they occur.

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