I don't know if you've waded through the hundreds of submissions to the Copyright Office inquiry on orphan works, but I have not. Thus, I am grateful to Peter Hirtle who summarizes the submissions in an FAQ for RLG DigiNews April 15, 2005,
He writes that many of them document unsuccessful efforts by individuals to locate copyright owners. There are also submissions from copyright owner representatives concerned about potential new regulations if they could increase infringements.
Peter says he has yet to find a submission that endorses the Canadian approach which requires users to submit extensive research on an orphan's copyright status to a government board.
Instead, he writes, many submissions endorse an approach that would require users to conduct a "reasonable" investigation into copyright status, and then enjoy immunity from statutory damages, attorney's fees and injunctive relief. Other proposals suggest that users publicize their intent to use a presumably orphan work via a website maintained by the Copyright Office.
Peter reminds us that the open period for replies lasts until May 9th. He suggests we focus reply comments on the proposed solutions. Notably, can we set forth a bright line determination of "reasonable effort?" (Minow: I'm over-paraphrasing Peter here, so look at his original. I feel strongly about this too. If we don't have some concrete measure of "reasonable effort," have we really set forth a safe harbor for risk averse folks?)
Tip of the hat to Peter Suber, Open Access News, for pointing to Peter's helpful article. In fact, that's how I found out about it!
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