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February 01, 2006

Comments

Good debate about the Orphan Works Bill is taking place at the Myartspace Blog. Link below.

http://www.myartspace.com/blog/2008/08/art-space-opinions-public-knowledge-and.html

Good question. Here is what Tim Padfield's excellent book on "copyright for Archivists" has to say about publishing without permission:

"An unpublished literary, dramatic or musical work, including any illustrations, which is open to the public inspection in an archives or similar institution may be published without permission and without infringement of copyright if:

- the work was created before 1 August 1989;
- the author has been dead for more than 50 years;
- the work is more than 100 years old;
- and the publisher did not know the identity of the copyright owner before publication.

It is not clear whether these provisions allow the publication of a work of which the author is unknown; it seems probable that if the work is of sufficient age that the author must have died at least 50 years earlier, that would be enough (but see 5.4.25)."

It goes on a little more after that about some other qualifiers. As far as I know, that is the only orphan work provision in UK copyright.

Does the UK have a special term for "orphan works" or is it the same as Canada "unlocatables"?

Professor Lawrence Lessig has some very interesting objections to the Copyright Office's Orphan Works Report:
http://www.lessig.org/blog/archives/20060306-lofgren.pdf

Attribution is also a important element of Creative Commons licensing.

All of the CC licenses that are available presently include attribution: "All of our licenses require that you give attribution in the manner specified by the author or licensor." http://creativecommons.org/about/licenses/

Hi Elizabeth! The report mentions that several commenters suggested attribution. I was talking with a colleague about it today, and we surmised that it may be not only a moral right issue, but also a practical mechanism that will make it easier for authors to use search engines to see if their work is appearing up online.

The attribution requirement is an EU thing -- do you think that is why it is added? The UK has an attribution requirement with fair dealings, exception in certain circumstances. Just a thought.

Thanks Peter - I'm pasting in the report's recommendation to Congress, to wit: allowing the user to make a reasonably diligent search, and then, if the use is nonprofit, no money damages. I like that!

In my comments, I had recommended a trust fund and/or notices of use filed with Copyright Office. Both of these were explicitly rejected, though I didn't think they were the world's best ideas either. It's such a tough problem without a clear solution.

Something that takes me by surprise is the requirement to give attribution, something I've never seen in the copyright law before. What do you think of that?

-Mary

UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

C. Recommended Statutory Language
SECTION 514: LIMITATIONS ON REMEDIES: ORPHAN WORKS
(a) Notwithstanding sections 502 through 505, where the infringer:

(1) prior to the commencement ofthe infringement, performed a good faith, reasonably diligent search to locate the owner of the infringed copyright and the infringer did not locate that owner, and

(2) throughout the course of the infringement, provided attribution to the author and copyright owner of the work, if possible and as appropriate under the circumstances, the remedies for the infringement shall be limited as set forth in subsection (b).

(b) LIMITATIONS ON REMEDIES

(1) MONETARY RELIEF

(A) no award for monetary damage (including actual damages, statutory damages, costs or attorney’s fees) shall be made other than an order requiring the infringer to pay reasonable compensation for the use of the infringed work; provided, however, that where the infringement is performed without any purpose of direct or indirect commercial advantage, such as through the sale of copies or phonorecords of the infringed work, and the infringer ceases the infringement expeditiously after receiving notice of the claim for infringement, no award of monetary relief shall be made.

(2) INJUNCTIVE RELIEF

(A) in the case where the infringer has prepared or commenced preparation of a derivative work that recasts, transforms or adapts the infringed work with a significant amount of the infringer’s expression, any injunctive or equitable relief granted by the court shall not restrain the infringer’s continued preparation and use of the derivative work, provided that the infringer makes payment of reasonable compensation to the copyright owner for such preparation and ongoing use and provides attribution to the author and copyright owner in a manner determined by the court as reasonable under the circumstances; and

(B) in all other cases, the court may impose injunctive relief to prevent or restrain the infringement in its entirety, but the relief shall to the extent practicable account for any harm that the relief would cause the infringer due to the infringer’s reliance on this section in making the infringing use.

(c) Nothing in this section shall affect rights, limitations or defenses to copyright infringement,including fair use, under this title.

(d) This section shall not apply to any infringement occurring after the date that is ten years from date of enactment of this Act.

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