Saturday, March 22, 2014

When is an Orphan Work Not An Orphan Work?

A few years ago, the Authors' Guild was quickly able to prove that certain Universities (and even a Search Engine!!!)  had very sloppy standards in determining in their own favor whether or not a work they would like to exploit for their own benefit was "orphan".

A work is considered "orphan" if the copyright owner cannot be found. It seems to me that it behoves all authors to make sure that they can easily be located, if they wish to benefit from their own labors and  genius and creative passion.

Blogs on the subject include:

Quoting from the latter:
"Here’s a six-sentence version for the time pressed: Several university libraries worked with Google to digitize millions of copyright-protected library books. The universities then placed these digital books in an online repository known as HathiTrust and permitted Google to keep a copy of each of the digital books it created. Although HathiTrust does not generally make those ebooks available, in the summer of 2011 it announced an “orphan works” program that would have allowed the downloading of books that the universities deemed “orphans” (books for which the authors cannot be found after diligent search). Authors and authors’ groups sued to stop the program and quickly discovered that many of the so-called orphans were readily findable. HathiTrust suspended the program, promising to restart it after further review. "

Apparently, since then the judge in the case ruled that the use of the copyrighted works was fair use,  or transformitive, because it was for data mining and "search" rather than access to the entire work, and the protests by the copyright owners over their works being called orphan were moot because the orphan works project had been abandoned.

Now, Congress is taking a look at orphan works, and there is still time to lodge a comment before the April 14th deadline.

Notice of Request for Additional Comments
The Copyright Office seeks further comments on potential legislative solutions for orphan works and mass digitization under U.S. copyright law that address topics listed in the Office's February 10, 2014 Notice of Inquiry or respond to any issues raised during the March 10-11, 2014 public meetings. All written comments should be submitted electronically using the comment submission form on the top left-hand side of this page. Comments are due by April 14, 2014.
The Copyright Office is reviewing the problem of orphan works under U.S. copyright law in continuation of its previous work on the subject and to advise Congress on possible next steps for the United States. The Office has long shared the concern with many in the copyright community that the uncertainty surrounding the ownership status of orphan works does not serve the objectives of the copyright system. For good faith users, orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace. The issue is not contained to the United States. Indeed, a number of foreign governments have recently adopted or proposed solutions.
During its review, the Office has requested comments and held public roundtables in Washington DC on March 10-11, 2014, which were videotaped and transcribed. During these roundtables, the Office heard a variety of viewpoints on a wide range of issues impacting orphan works and mass digitization efforts. The Office will post the transcripts and video on the Office website as they become available. 

An interesting postscript for those authors who have a problem with "Bookshare" which scans copyrighted works without permission, for publication and distribution to unfortunate persons with print disabilities is a comment on the AG blog.

Rowena Cherry


"a footnote in the amicus brief filed on behalf of the American Association of People with Disabilities (Doc 138) where it says at footnote 16 Page 17:
"As the HDL and NFB explain, Congress also enacted Section 121 of the Copyright Act, 17 U.S.C. § 121, to clarify that efforts to make books accessible to patrons with disabilities are non-infringing."
This was a footnote to the statement on page 17: "Fortunately, Congress has harmonized copyright and accessibility law by recognizing that making copyrighted works accessible for people with disabilities is a non-infringing fair use."
In his Senate floor comments upon the introduction of Section 121, the late Senator Chafee made no remarks as to how his drafted amendment might 'clarify' or even address fair use; quite the contrary, he made the remark that even subsequent to the Copyright Act of 1976, The Library of Congress itself was still required to obtain permission from publishers before making any accessible renditions of copyrighted works."
All the best,
Rowena Cherry

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