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February 07, 2005


The Copyright Office asks a series of specific questions, and also gives commentors the latitude to discuss any relevant issues ... if this passes, it helps move the discussion and awareness of the orphan problem along, even though the legislation is really only a fix to include formats that were inadvertantly left out of the original Bono legislation. If you're a film preservationist, no doubt it seems more important than a "mere technical fix."

How does this relate to the current call for comments on orphan works by the Copyright Office?

Yes, libraries "may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research" works during the last 20 years of copyright ... yes I don't see a way to say that doesn't include placing on the net.

The exemption does not apply to any subsequent uses by users other than such library or archives, so it makes sense for libraries to put a warning to that effect on the page they post these works to. Libraries generally have warnings anyway, telling subsequent users that they're on their own when it comes to figuring out copyright.

I do NOT know of libraries/archives that take advantage of this, though I hope some are. I think I always discuss it in my workshops as an option, but I also mention that I'm not representing the libraries as their attorney. There's that unclear "subject to commerical exploitation" that makes people uncertain ...

(1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply.

(2) No reproduction, distribution, display, or performance is authorized under this subsection if—
(A) the work is subject to normal commercial exploitation;

(B) a copy or phonorecord of the work can be obtained at a reasonable price; or

(C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies.

(3) The exemption provided in this subsection does not apply to any subsequent uses by users other than such library or archives.

Mary, I have a couple of questions. Does this mean that libraries can place works on the internet, even though they are not in the public domain, if they meet the qualifications? What constitutes a library or archive? Is this then about access, rather than copyright ownership, because those USING the works would still have restrictions but they would at least be able to view the work? Have a lot of libraries and archives taken advantage of this?

The Family Entertainment and Copyright Act [FECA - probably the worst acronym I've ever seen, just begging for a final "L"](S. 167) passed the Senate Feb 1. Title IV contains the small orphan fix. Talk about small - it's only one sentence (the same sentence as in Title I of H.R.24):


Section 108(i) of title 17, United States Code, is amended by striking `(b) and (c)' and inserting `(b), (c), and (h)'."

Passed the Senate February 1, 2005.


Senator Leahy said:
"The Film Preservation Act [Title III] will allow the Library of Congress to continue its important work in preserving America's fading film treasures. What is more, the bill will assist libraries, museums, and archives in preserving films, and in making those works available to researchers and the public. Finally, the billcontains the Preservation of Orphan Works Act [Title IV], which will correct a drafting error in the Sonny Bono Copyright Term Extension Act and will allow libraries to create copies of orphan works--copyrighted materials that are in the last 20 years of their copyright term, are no longer commercially exploited, and are not available at a reasonable price.

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