LOST & FOUND: A PRACTICAL LOOK AT ORPHAN WORKS

October 23, 2009

New York City Bar Association
Tuesday, October 20, 2009

How should the law treat “orphan works”? The speakers discussed proposals that would enable copyrighted works to be used when their owners cannot be located to obtain necessary permissions. What should be the obligations of potential users with respect to searching for copyright owners? How should infringement claims be handled if a copyright owner emerges? Do different types of copyrighted works present unique issues? What roles might registries and recognition and detection technologies play?

Speakers:

Brendan M. Connell, Jr., Director and Counsel for Administration, The Solomon R. Guggenheim Foundation
Frederic Haber, Vice President and General Counsel, Copyright Clearance Center, Inc.
Eugene H. Mopsik, Executive Director, American Society of Media Photographers
Maria Pallante, Associate Register for Policy & International Affairs, U.S. Copyright Office
Charles Wright, Vice President and Associate General Counsel, Legal and Business Affairs, A&E Television Networks

The discussion focused on orphan images. A particularly acute problem for visual works is that the Registry is not image searchable. Charles Wright described the online registry as being an analog system as dumped into a digital space. He suggested that more advanced technologies should be utilized. In response to this suggestion, Maria Pallante noted the constraints on Government action, namely that there is only so much time and money to make that the Government could give to the Registry.

The speakers debated the latest Bill on orphan works, the Shawn Bentley Orphan Works Act of 2008. The text of the Bill is available at http://www.govtrack.us/congress/billtext.xpd?bill=s110-2913 There are two main issues of concern for lawmakers. First is what standard a user of an orphan work should be held to when assessing the user’s search for the author of the work. The latest Bill requires a “diligent effort”, but there is some confusion as to whether or not the standard will vary with the type of user or type of use at issue. Second is whether or not the users of orphan works should have to give notice of such use, and what form the notice should take.

It was also noted that the European Commission is currently grappling with the same issues and on 19 October 2009 adopted the Communication on Copyright in the Knowledge Economy, which partly addresses orphan works. There will be a Public Hearing in Brussels on Monday 26 October 2009 to gather further evidence on orphan works and how their digitisation and dissemination can best be managed in full respect of copyright rules.