ALAWON: American Library Association Washington Office Newsline Volume 14, Number 27 March 21, 2005 In This Issue: The following is an Update on Library Community Filing on Orphan Works, helpfully provided by Prue Adler of the Association of Research Libraries. The library community will be filing comments with the U.S. Copyright Office in support of a proposal to change copyright law to address issues surrounding orphan works. Orphan works are those copyrighted works whose owners are difficult or even impossible to find. The Copyright Office issued a Notice of Inquiry on January 26, 2005 (http://www.copyright.gov/fedreg/2005/70fr3739.html) soliciting advice on the problem of orphan works. This provides an important opportunity to those who are interested in using works still protected under the ever lengthening copyright terms (thanks to the Berne Convention Implementation Act of 1988 and the Sonny Bono Copyright Term Extension Act of 1998) but whose owners cannot be identified. The library associations are working with many in the non-profit community including library associations, the Glushko-Samuelson Intellectual Property Clinic, the College Art Association (CAA), the American Historical Association, cultural institutions, and public interest groups in developing a "legislative fix" to the Copyright Act to address the issues associated with orphan works. The hope is to draft a legislative solution that many communities and constituencies can support. There is a strong sense that if many organizations and interests can coalesce behind one proposal, this could be helpful in moving the discussions forward. Once review of the draft proposal is completed, I will post it to the directors list for your consideration. In the interim, the following is an outline of the draft proposal. • The definition of an orphan work is a work for which the copyright owner cannot be reasonably located. • The types of works to which the draft solution applies is wide in scope - published and unpublished works and older as well as recent works. It may be just as difficult to identify the copyright owner of a recent photograph as an older work. • The use of orphan works should apply to all types of uses, not-for-profit and for profit. • The legislative solution is not limited to specific constituencies, e.g. libraries or educational institutions. The interest in using orphan works is far too broad for such a limitation. • The proposal calls for a " reasonable efforts search" by "qualified users." A reasonable effort would be an effort to identify and locate copyright owners in good faith, using location tools and other resources, and that is considered reasonable under the totality of the circumstances. Such a user is an institution or individual who uses an orphan work after conducting a reasonable search. • The proposal will provide general guidance to the user as to what constitutes a reasonable effort, e.g. use of "best practices" developed by relevant professional organizations (e.g. from CAA, the library community, etc.) and information from the Copyright Office. • Once a reasonable effort has been conducted, a user may use an orphan work without limitation unless or until an owner comes forward. If an owner does come forward, new use of that work would require permission. Previous use could continue. • Provisions relating to pursuing legal action are included as are limitations on remedies and liability. We still welcome any information concerning the experiences that users and institutions have faced when seeking permission to use a copyrighted work. The more information that can be provided concerning difficulties you have faced in seeking permissions will bolster our arguments about the need to change the law. Please send any information that you may have to Carrie Russell at . Included below are questions that may help frame your response. Thank you! 1) Can you provide specific examples of difficulties that you have faced in identifying and locating copyright owners when seeking permission for copyrighted works? If possible, please include the type of work and its intended use (e.g., photograph, book, article, film clip), the amount of time taken for each search, and whether or not you were able to obtain permission for use of the work. 2) How often is identifying and locating the copyright owner a problem? 3) Are difficulties often encountered even after the copyright owner is identified? 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