Orphan Works and Mass Digitization; Request for Additional Comments and Announcement of Public Roundtables, 7706-7711 [2014-02830]
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Federal Register / Vol. 79, No. 27 / Monday, February 10, 2014 / Notices
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses.
Agency: DOL–OS.
Title of Collection: National
Longitudinal Study of Unemployment
Insurance Recipients.
OMB ICR Reference Number: 121308–
0190–001.
Affected Public: Individuals or
Households.
Total Estimated Number of
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Responses: 5,695.
Total Estimated Annual Time Burden:
2,373 hours.
Total Estimated Annual Other Costs
Burden: $0.
Dated: February 4, 2014.
Michel Smyth,
Departmental Clearance Officer.
[FR Doc. 2014–02821 Filed 2–7–14; 8:45 a.m.]
BILLING CODE 4510–23–P
LEGAL SERVICES CORPORATION
Notice and Request for Comments:
LSC Merger of Service Areas in
Louisiana
Legal Services Corporation.
Notice and Request for
Comments—LSC merger of the two
service areas covering the south-central
and southeastern region of Louisiana.
AGENCY:
ACTION:
The Legal Services
Corporation (LSC) intends to merge the
two service areas that cover the twelve
counties of the south-central region of
Louisiana (including Baton Rouge) and
the ten counties of the southeastern
region of the state (including New
Orleans). Grants for these individual
service areas have been awarded to
Southeast Louisiana Legal Services
Corporation (SLLSC) since 2011. For
2014, LSC awarded SLLSC three-year
grants for these two service areas. LSC
intends to merge the two service areas
into one service area and to award one
grant for the new combined service area.
Doing so will harmonize the grant
structure with the current delivery
model.
SUMMARY:
All comments must be received
on or before the close of business on
March 12, 2014.
ADDRESSES: Written comments may be
submitted to LSC by email to
competition@lsc.gov (this is the
preferred option); by submitting a form
online at http://www.lsc.gov/contact-us;
by mail to Legal Services Corporation,
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DATES:
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3333 K Street NW., Third Floor,
Washington, DC 20007, Attention:
Reginald Haley; or by fax to 202–337–
6813.
FOR FURTHER INFORMATION CONTACT:
Reginald J. Haley, Office of Program
Performance, Legal Services
Corporation, 3333 K Street NW.,
Washington, DC 20007; or by email at
haleyr@lsc.gov.
The
mission of LSC is to promote equal
access to justice and to provide funding
for high-quality civil legal assistance to
low-income persons. Pursuant to its
statutory authority, LSC designates
service areas in U.S. states, territories,
possessions, and the District of
Columbia for which it provides grants to
legal aid programs to provide free civil
legal services.
The LSC Act charges LSC with
ensuring that ‘‘grants and contracts are
made so as to provide the most
economical and effective delivery of
legal assistance to persons in both urban
and rural areas.’’ 42 U.S.C. 2996f(a)(3).
Merging the two Louisiana service areas
will provide an economical and
effective delivery approach for serving
the legal needs of the low-income
population and will harmonize the grant
structure with the current delivery
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LSC provides grants through a
competitive bidding process, which is
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LSC implemented a competitive grants
process for 2014 calendar year funding
that included, inter alia, these Louisiana
service areas. For 2014, LSC awarded
SLLSC three-year grants for both of
these service areas. LSC intends to
merge the two service areas into a single
service area and merge the 2014 grants
for those service areas into a single grant
beginning March 21, 2014.
LSC invites public comment on this
decision. Interested parties may submit
comments to LSC no later than the close
of business on March 12, 2014. More
information about LSC can be found at:
http://www.lsc.gov.
SUPPLEMENTARY INFORMATION:
Dated: February 5, 2014.
Atitaya C. Rok,
Staff Attorney.
[FR Doc. 2014–02810 Filed 2–7–14; 8:45 am]
BILLING CODE 7050–01–P
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LIBRARY OF CONGRESS
U.S. Copyright Office
[Docket No. 2012–12]
Orphan Works and Mass Digitization;
Request for Additional Comments and
Announcement of Public Roundtables
U.S. Copyright Office, Library
of Congress.
ACTION: Notice of Inquiry.
AGENCY:
The U.S. Copyright Office
will host public roundtable discussions
and seeks further comments on
potential legislative solutions for orphan
works and mass digitization under U.S.
copyright law. The meetings and
comments will provide an opportunity
for interested parties to address new
legal developments as well as issues
raised by comments provided in
response to the Office’s previous Notice
of Inquiry.
DATES: The public roundtables will be
held on March 10, 2014 from 9:00 a.m.
to 5:00 p.m. EST and March 11, 2014
from 9:00 a.m. to 5:00 p.m. EST. Written
comments must be received no later
than 5 p.m. EST on April 14, 2014.
ADDRESSES:
SUMMARY:
Public Roundtables
The public roundtables will take
place in the Copyright Office Hearing
Room, LM—408 of the Madison
Building of the Library of Congress, 101
Independence Avenue SE., Washington,
DC 20559. The Copyright Office strongly
prefers that requests for participation be
submitted electronically. The agendas
and the process for submitting requests
to participate in or observe one of these
meetings are included on the Copyright
Office Web site. If electronic registration
is not feasible, please contact the Office
at 202–707–1027.
Public Comments
Members of the public will have the
opportunity to submit written
comments following the public
roundtable meetings. The written
comments may address topics listed in
this Notice of Inquiry as well as respond
to any issues raised during the public
meetings. All written comments should
be submitted electronically. A comment
form will be posted on the Copyright
Office Web site at http://copyright.gov/
orphan/ no later than March 12, 2014.
The Web site interface requires
commenting parties to complete a form
specifying name and organization, as
applicable, and to upload comments as
an attachment via a browser button. To
meet accessibility standards,
commenting parties must upload
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comments in a single file not to exceed
six megabytes (MB) in one of the
following formats: the Adobe Portable
Document File (PDF) format that
contains searchable, accessible text (not
an image); Microsoft Word;
WordPerfect; Rich Text Format (RTF); or
ASCII text file (not a scanned
document). The form and face of the
comments must include both the name
of the submitter and organization. The
Office will post the comments publicly
on the Office’s Web site exactly as they
are received, along with names and
organizations. If electronic submission
of comments is not feasible, please
contact the Office at 202–707–1027 for
special instructions.
FOR FURTHER INFORMATION CONTACT:
Karyn Temple Claggett, Associate
Register of Copyrights and Director of
Policy and International Affairs, by
telephone at 202–707–1027 or by email
at kacl@loc.gov, or Catherine Rowland,
Senior Counsel for Policy and
International Affairs, by telephone at
202–707–1027 or by email at crowland@
loc.gov.
SUPPLEMENTARY INFORMATION:
Background: The Copyright Office is
reviewing the issue of orphan works 1
under U.S. copyright law in
continuation of its previous work on the
subject and to advise Congress on
potential legislative solutions. As part of
its current review, the Office is
considering recent developments in the
legal and business environments
regarding orphan works in the context
of: (1) occasional or isolated uses of
orphan works; and (2) mass digitization.
In October 2011, the Office published a
Preliminary Analysis and Discussion
document (the ‘‘Analysis’’) that
examined various legal issues involved
in mass digitization projects.2
Subsequently, to assist with further
review of the issue, the Office published
a general Notice of Inquiry (the
‘‘Notice’’) seeking comments from the
public on both mass digitization and
isolated uses of orphan works.3 The
Notice provided background on the
Office’s previous review of this issue in
its January 2006 Report on Orphan
1 ‘‘An ‘orphan work’ is an original work of
authorship for which a good faith, prospective user
cannot readily identify and/or locate the copyright
owner(s) in a situation where permission from the
copyright owner(s) is necessary as a matter of law.’’
Copyright Office Notice of Inquiry, Orphan Works
and Mass Digitization, 77 FR 64555 (Oct. 22, 2012),
available at http://www.copyright.gov/fedreg/2012/
77fr64555.pdf.
2 U.S. Copyright Office, Legal Issues in Mass
Digitization: A Preliminary Analysis and Discussion
Document (2011), available at http://
www.copyright.gov/docs/massdigitization/
USCOMassDigitization_October2011.pdf.
3 Notice, 77 FR 64555–61.
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Works (the ‘‘2006 Report’’),4 legislation
proposed in 2006 and 2008,5 the Google
Books Search and Hathitrust litigation,6
the role of the Office and private
registries in alleviating the orphan
works problem, legal issues in mass
digitization, and recent international
developments. In 2013, the Office
received ninety-one initial comments
from various interested parties and
eighty-nine reply comments. The
Notice, comments, and background
materials are available at the Copyright
Office Web site. The Office now
announces public roundtables and seeks
further public comments to discuss new
legal developments as well as specific
issues raised by earlier public comments
as it considers potential legislative
recommendations.
Subjects of Comments and Public
Roundtables: After reviewing the
comments in response to the Copyright
Office’s prior Notice, the Office is
interested in holding public roundtables
to further explore the issues
surrounding orphan works and mass
digitization. The Office will hold the
public roundtable discussions over the
course of two days. The first day will
cover the following topics: (1) The need
for legislation in light of recent legal and
technological developments; (2)
defining a good faith ‘‘reasonably
diligent search’’ standard; (3) the role of
private and public registries; (4) the
types of works subject to any orphan
works legislation, including issues
related specifically to photographs; and
(5) the types of users and uses subject
to any orphan works legislation. The
second day will include discussions of
the following topics: (1) Remedies and
procedures regarding orphan works; (2)
mass digitization, generally; (3)
extended collective licensing and mass
digitization; and (4) the structure and
mechanics of a possible extended
collective licensing system in the
United States. Each of these topics is
explained in more detail below.
Additionally, the Office invites
further written comments regarding the
subjects briefly identified above and
further explained below, including from
parties who did not previously address
those subjects, or those who wish to
amplify or clarify their earlier comments
or respond to issues raised in the public
4 U.S. Copyright Office, Report on Orphan Works
(2006), available at http://www.copyright.gov/
orphan/orphan-report-full.pdf.
5 Shawn Bentley Orphan Works Act of 2008, S.
2913, 110th Cong. (2008); Orphan Works Act of
2008, H.R. 5889, 110th Cong. (2008); Orphan Works
Act of 2006, H.R. 5439, 109th Cong. (2006).
6 Authors Guild, Inc. v. HathiTrust, 902 F. Supp.
2d 445 (S.D.N.Y. 2012); Authors Guild, Inc. v.
Google Inc., 770 F. Supp. 2d 666 (S.D.N.Y. 2011)
(‘‘Google I’’).
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roundtable meetings. A party choosing
to respond to this Notice of Inquiry need
not address every subject below, but the
Office requests that responding parties
clearly identify and separately address
each subject for which a response is
submitted. Commenters may address
any or all of the issues identified below,
as well as provide information on other
aspects of these issues that are relevant
to developing potential legislative
solutions to the issues of orphan works
and mass digitization.
Day One
Session 1: The Need for Legislation in
Light of Recent Legal and Technological
Developments
The Office’s 2006 Report concluded
that the orphan works problem was
pervasive and provided draft legislative
language for congressional
consideration. Though several bills were
introduced in 2006 and 2008,7 none of
them ultimately were enacted. Since
then, high-profile litigation in the
United States brought the issue of
orphan works back to the fore. In
rejecting the proposed settlement
agreement in The Authors Guild, Inc. v.
Google Inc. in 2011, the Southern
District Court of New York explicitly
noted that it is Congress, and not the
courts, who should decide how to
resolve the issue of orphan works.8
Recently, the same district court granted
summary judgment to Google on
copyright infringement claims relating
to the Google Books Library Project,
concluding that ‘‘Google Books provides
significant public benefits,’’ and that its
book scanning project constitutes fair
use under U.S. copyright law.9 While
the court’s ruling did find the Google
Books mass digitization project to be fair
use, it neither indicated how broadly
the opinion could be used to justify
other types of mass digitization projects
nor did it explicitly address the issue of
orphan works.
Similarly, on October 10, 2012, the
Southern District of New York also
7 See
supra note 5.
I, 770 F. Supp. 2d at 678. ‘‘Google
Books’’ is the larger project that includes the Google
Books Library Project and the Google Books Partner
Project (formerly ‘‘Google Print’’). Google
commenced its book scanning project (then referred
to as ‘‘Google Print Library Project’’) in 2004. In
September 2005, the Authors Guild of America and
five publisher members of the Association of
American Publishers (‘‘AAP’’) sued Google for
copyright infringement. The Google Books Partner
Project was created when Google and the publishers
announced a settlement agreement in October 2012.
References to ‘‘Google Books’’ or the ‘‘Google Books
case’’ relate to litigation surrounding the Library
Project.
9 Authors Guild, Inc. v. Google Inc., Case No. 05
Civ. 8136 (DC), 2013 WL 6017130, *26 (S.D.N.Y
Nov. 14, 2013) (‘‘Google II’’).
8 Google
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ruled that the digitization project
undertaken by the HathiTrust Digital
Library (‘‘HathiTrust’’) and its five
university partners was largely
transformative and protected by fair
use.10 The court, however, did not
consider the copyright claims relating to
the HathiTrust Orphan Works Project,
finding that the issue was not ripe for
adjudication because the defendants
had suspended the project shortly after
the complaint was filed.11
In addition to these legal
developments, technology has
significantly progressed since Congress
last considered the orphan works issue.
Since 2008, technological developments
have arguably mitigated the orphan
works problem via vastly improved
search tools and database technology.
Improved search engine technology
allows users to locate rights holders
(and vice versa) via image, sound, or
video searches. Improved databases,
such as the PLUS Registry,12 and
database interoperability allow
copyright rights holders to better
publicize ownership information. Yet,
many argue that these technologies are
not being effectively utilized in the
context of orphan works and a
legislative solution remains necessary.
In light of recent legal and
technological developments, the Office
is interested in discussing the current
need for legislation to address the issues
of orphan works and mass digitization.
Specifically, the public roundtable
meetings will allow participants to
discuss whether recent legal
developments have obviated the need
for legislation, or whether new
legislation would resolve or alleviate the
concerns identified in the comments.
Can the orphan works problem be
resolved under existing exceptions and
limitations contained in the current
Copyright Act, such as fair use? Should
this determination hinge on the type of
use or user making use of the work? If
legislation is deemed necessary, how
10 HathiTrust,
902 F. Supp. 2d 445.
at 455–56.
12 The PLUS Registry (the ‘‘Registry’’) is an online
database created and operated by PLUS Coalition,
Inc., an international group of communities
‘‘dedicated to creating, using, distributing and
preserving images.’’ Users may search the Registry
to find rights and descriptive information
(‘‘metadata’’) for any image, and to
find current contact information for related
creators, rights holders and institutions. Owners
may register their images and image licenses to
allow authorized users to find rights and
descriptive metadata using a specific ID or image
recognition. Plus Coalition, Inc., ‘‘About,’’https://
www.plusregistry.org/cgi-bin/WebObjects/
PlusDB.woa/1/wo/kl6vPj6TeDu1MqoK7ajbug/
0.107.27. The role of private and public registries
is further discussed in Session 3, below.
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11 Id.
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should it reflect or acknowledge recent
developments in fair use law, if at all?
Additionally, the Office would like to
discuss the impact of technological
advancements. For example, have
improved search tools and database
technologies mitigated the orphan
works problem, or are these
technologies not being effectively
utilized in the context of orphan works?
Session 2: Defining the Good Faith
‘‘Reasonably Diligent Search’’ Standard
In its 2006 Report, the Copyright
Office recommended that Congress
amend the Copyright Act to limit the
remedies available against good faith
users of orphan works after the user
performed a generally ‘‘reasonably
diligent search’’ to locate the owner of
that work. The 2008 bills set forth
certain baseline requirements such as
searching the Office’s online records,
and would have required users to
consult best practices applicable to the
work at issue. Both copyright owners
and users would have participated in
developing these best practices, which
the Register of Copyrights would have
coordinated.
The Office is interested in discussing
how best to define a good faith,
reasonably diligent search in light of
changes in the legal and technological
environment since 2008, and whether
improvements can be made to the
standard set forth in the 2008 bills.
What are the relative advantages or risks
of flexible versus rigidly-defined search
standards? Additionally, should the
Office participate in developing search
criteria or evaluating searches, and
should regulations set forth specific
search criteria? Moreover, what should
be the role of community-developed
best practices documents that may guide
particular groups of users making
particular types of uses, and who should
develop these ‘‘best practices’’
documents? Finally, what role should
the Office play in developing,
monitoring, or certifying search criteria?
Session 3: The Role of Private and
Public Registries
One question regarding orphan works
is the role public and private registries
might play in any orphan works
solution. The most obvious of these
registries, the Copyright Office’s own
registration and recordation system,
provides a wealth of copyright
information but has limitations based on
both technological requirements and the
fact that registration and recordation is
not mandatory in the United States.
There are other registries that have
ownership information, and there has
been some suggestion that the Office
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should investigate enhancing
interoperability between the Office
system and private rights registries.13
The Office would like to discuss the
role registration and recordation may
play in helping to more effectively
mitigate the orphan works problem. For
example, in the context of orphan
works, how could the Office facilitate
and incentivize owners to register their
works and keep their ownership and
contact information current? Should
failure to register with the Office affect
the orphan status of a work? How could
any such incentives be reconciled with
the United States’ obligations under the
Berne Convention and other
international instruments? Additionally,
the Office is interested in learning more
about the appropriate role of third party
registries (commercial and
noncommercial). For example, what
could be the Office’s role in overseeing
or certifying these third party registries?
Would it be helpful for the Office to
establish a registry requiring users to
register their use of, or intent to use,
orphan works similar to that envisioned
in the Orphan Works Act of 2008? 14
Does the recently-passed UK orphan
works legislation, which envisions a key
role for a web portal connecting
multiple private and public Web sites
and databases, present an attractive
model for utilizing and organizing these
registries in the United States?
Session 4: Types of Works Subject to
Orphan Works Legislation, Including
Issues Related Specifically to
Photographs
As described in the Office’s previous
Notice and many of the responding
comments, orphan works remain a
pervasive issue in copyright law. While
the issue cuts across all creative sectors,
the unique challenges posed by
photographs have long been an obstacle
to developing an effective orphan works
solution. Photographs and other works
of visual art may lack or may more
easily become divorced from ownership
information, especially in the age of
social media that has largely transpired
since Congress considered the 2008
bills. This lack of identifying
13 As mentioned in the Notice, the Office has
begun digitizing its historic records and is initiating
upgrades to its registration and recordation systems.
These projects will facilitate public access to, and
thus improve users’ ability to investigate, the
copyright status of works, including the
identification and location of copyright owners. The
upgrades to the registration and recordation systems
also are meant to facilitate the effective registration
of works and recordation of documents related to
registered works, helping to ensure that the record
and contact information on file with the Office
remains accurate. Notice, 77 FR 64558.
14 H.R. 5889, 110th Cong. sec. 2(a), § 514(b)(3)
(2008).
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information often prevents users from
locating or even initiating a search for
orphaned photographs’ rights holders.
The 2008 bills included a number of
provisions specifically aimed at
resolving some of the issues specific to
photographs.
In light of the peculiar position of
photographs, it is important to consider
how any orphan works solution might
address these specific works, either by
creating specific rules or excluding
them altogether. Excluding photographs
would not be a novel solution; the
European Union recently approved an
orphan works directive (the ‘‘Directive’’)
that provides an exception for
noncommercial public interest users
making noncommercial public interest
uses of orphan works, while providing
a general exclusion of photographs from
the scheme.15
The Office is interested in discussing
how to address the problems presented
by certain types of works, including
specifically photographic and visual arts
orphan works. Should an orphan works
solution exclude any particular type of
work or should it include all
copyrighted works? Would the
exclusion of certain types of works
substantially undermine the
effectiveness of any orphan works
solution? If all types of works are
included, what (if any) special
provisions are required to ensure that all
copyright owners, such as
photographers, are treated equitably
within the legislative framework? Do
recent developments such as the
creation of voluntary registries, like the
PLUS Registry,16 mitigate any of the
earlier concerns regarding the treatment
of photographs?
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Session 5: Types of users and uses
subject to orphan works legislation
The Copyright Office’s previous
orphan works review did not
differentiate between commercial and
noncommercial uses and users of
orphan works. Since then, however,
there has been a debate regarding
whether an orphan works solution
should take into account the user’s
status as either a commercial or
noncommercial entity. For example, the
15 Directive 2012/28/EU, of the European
Parliament and of the Council of 25 October 2012
on Certain Permitted Uses of Orphan Works,
available at http://register.consilium.europa.eu/
doc/srv?l=EN&t=PDF&gc=true&sc=false&
f=PE%2036%202012%20REV%202. Note, however,
that photographs embedded in other, covered,
works (e.g., photographs contained in books) are
included within this scheme. Id. at art. 1(4).
16 See Plus Coalition, Inc., supra note 12. Both the
2008 House and Senate bills would have delayed
implementation until after such a registry was
developed.
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Directive provides an exception for
noncommercial public interest users
making noncommercial public interest
uses of orphan works.17 Any solution
that excludes commercial users and
uses, however, may arguably provide an
incomplete solution. Some have argued
that the policy motivations behind any
orphan works legislation logically
should extend to commercial uses that
may promote the underlying goals of the
Copyright Act. The United Kingdom’s
recently adopted orphan works
legislation does not differentiate
between commercial and
noncommercial users or uses.
The Office thus is interested in
learning more about whether an orphan
works solution should encompass both
commercial and noncommercial uses.
Should orphan works legislation apply
equally to commercial and
noncommercial uses and users? If not,
how should specific types of uses and
users be treated within the legislative
framework? Should orphan works
legislation be limited only to uses by
noncommercial entities with a public
service mission? Should these entities
be permitted to use orphan works only
for limited purposes such as
preservation, or should they be able to
broadly use orphan works to provide
access to the public? Should
commercial entities be able to make
commercial use of orphan works? What
are the relative advantages or
disadvantages of allowing such use?
Day Two
Session 1: Remedies and Procedures
Regarding Orphan Works
The Office’s 2006 Report did not
suggest creation of an exception to
copyright for use of orphan works, but
instead recommended that Congress
limit the remedies that the copyright
owner could seek against good faith
users of orphan works to injunctive
relief and ‘‘reasonable compensation’’
for the use of the work. The Office also
recommended a ‘‘take-down’’ option for
certain noncommercial users engaged in
noncommercial activities, which was
incorporated in the proposed 2008
legislation. In addition to the take-down
provision, the legislation also would
have (1) limited remedies to good faith
users of orphan works having performed
a reasonably diligent search, (2) been
applicable on a case-by-case basis, and
(3) permitted rights holders to
reasonable compensation, but not
statutory damages or attorneys’ fees. The
Senate bill would have allowed owners
to reclaim their works by serving a
17 See
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7709
‘‘Notice of Claim of Infringement,’’
requiring the user to cease the
infringement and negotiate in good faith
with the rights holder.18
The appropriate structure and scope
of remedies continues to be a significant
issue of concern for both copyright
owners and potential users of orphan
works. For example, the threat and
unpredictable nature of statutory
damages, the need for predictability and
reasonableness in assessing damages,
and the rights available to creators of
derivative works based on orphan works
are all issues that warrant further
discussion.
The Office is interested in discussing
remedies and procedures in the context
of orphan works. What remedies should
be available where orphan works rights
holders emerge after a third party has
already begun to use an orphaned work?
What rights should be available for
creators of derivative works based on
orphan works? What procedures should
be put in place where these situations
arise? Does the limitation on liability
model still make sense in the current
legal environment? Should orphan
works legislation instead be re-framed
as an exception to copyright as it is in
an increasing number of foreign
jurisdictions?
Session 2: Mass Digitization, Generally
The Office’s 2006 Report and the 2008
proposed legislation did not consider
the issue of mass digitization in detail.
Although mass digitization was ongoing
in 2008, the practice has since become
much more prevalent. Thus, it is
important to understand how mass
digitization fits into an orphan works
solution. Because many of the
comments submitted in response to the
Notice indicated that the issue of mass
digitization should be treated separately
from the issue of orphan works, it also
is important to understand whether
mass digitization fits into an orphan
works solution.
The Copyright Office would like to
discuss the intersection of mass
digitization and orphan works at the
public roundtable meetings. As a
preliminary matter, the Office is
interested in discussing what types of
digitization projects should be covered
by any legislative proposal, including
the scope of activities that can be
accurately described as ‘‘mass
digitization.’’ Additionally, it is
important to review the relative risks
and benefits of mass digitization
projects. The Office would like to
discuss the types of entities that might
18 S. 2913, 110th Cong. sec. 2(a) § 514(c)(1)(B),
514(b)(1)(A) (2008).
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be able to engage in such activities
under any legislative proposal, and the
types or categories of works that should
be covered. Moreover, under what
circumstances should mass digitization
projects proceed and how may digitized
materials be used? How might any mass
digitization solution differ from that of
a general orphan works solution? Would
potential solutions developed in the
context of mass digitization ameliorate
the issue of orphan works? How might
these potential solutions interact?
mstockstill on DSK4VPTVN1PROD with NOTICES
Session 3: Extended Collective
Licensing and Mass Digitization
Several foreign countries have laws
that address mass digitization in
different ways. For example, recentlypassed legislation in the United
Kingdom creates a bifurcated approach
allowing certain types of individual
uses of orphan works and mass
digitization.19 There, individual or
occasional users of orphan works may
apply for a non-exclusive license from
a centralized government or
government-sanctioned private agency
on payment of a license fee held in
escrow should rights holders reemerge.20 Users also must perform a
diligent search for the rights holder,
which must be verified by the
authorizing body before a license will be
issued.21 Cultural institutions engaging
in mass digitization, on the other hand,
may digitize works (including orphan
works) in their existing collections
through an extended collective licensing
regime.22 The licenses granted are not
exclusive and all rights holders have the
right to opt out of any license.23
Hungary has adopted a similar two-tier
orphan works solution.24 Several Nordic
19 See Enterprise and Regulatory Reform Act,
2013, c. 24, § 77, available at http://
www.legislation.gov.uk/ukpga/2013/24/section/77.
20 Id.
21 Id.
22 Id. In extended collective licensing models,
representatives of copyright owners and
representatives of users negotiate terms that are
binding on all members of the group by operation
of law (e.g., all textbook publishers), unless a
particular copyright owner opts out. Extended
collective licensing regimes authorize the grant of
broad licenses to make specified uses of incopyright works for which it would be unduly
expensive to clear rights on a work-by-work basis
(e.g., mass digitization of in-copyright works,
photocopying in-copyright articles in library
settings). The government or a trusted designee
typically administers payments. It is not quite
compulsory licensing in that the parties (rather than
the government) negotiate the rates, but it
nevertheless requires a legislative framework and
often involves some degree of government
oversight. See Notice, 77 FR 64559.
23 Enterprise and Regulatory Reform Act 2013 at
Section 77.
24 100/2009 (V. 8) Korm. rendelet az arva mu
´
¨
´ ´
´
´ ´
´
egyes felhasznalasainak engedelyezesere vonatkozo
´
´
´
reszletes szabalyokrol (Government Regulation on
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countries also have adopted extended
collective licensing regimes for limited
types of works and uses in the context
of mass digitization.25
The Office is interesting in reviewing
the option of extended collective
licensing for purposes of mass
digitization in detail. For example, the
Office is interested in discussing
whether the United States should look
abroad to foreign extended collective
licensing approaches for ideas on
domestic action on the issue of mass
digitization. If so, which approach or
components of any particular approach
present attractive options for a potential
U.S. course of action? Should such a
system include both commercial and
noncommercial uses, or be limited to
noncommercial entities? How do
extended collective licensing systems
work in practice in the countries where
they have been adopted? Are there
statistics or any longitudinal data
regarding the success of extended
collective licensing regimes, particularly
`
vis-a-vis orphan works and mass
digitization, around the world? Further,
would the U.S. political, legal, and
market structures, which can be quite
different from foreign counterparts,
support an extended collective
licensing-type solution?
Session 4: The Structure and Mechanics
of a Possible Extended Collective
Licensing System in the United States
Extended collective licensing systems
exist where representatives of copyright
owners and users negotiate terms that
are binding on both members and
similarly situated non-members of the
group by operation of law, unless an
interested copyright rights holder elects
to opt out. Collective management
organizations function by establishing,
collecting, and distributing these license
fees. These organizations typically are
sanctioned or overseen by the
government. Where these organizations
collect licensing fees relating to orphan
works, they typically hold these fees
until the owner emerges to collect the
fee or for a statutorily set period of time.
In this way, extended collective
licensing may present an option for
resolving many of the issues inherent in
mass digitization projects, especially as
they relate to the incidental digitization
of orphan works contained in these
digitized collections.
the Detailed Rules Related to the Licensing of
Certain Use of Orphan Works), arts. 2(1), 2(2), 3
(Hung.), available at http://www.hipo.gov.hu/
English/jogforras/100_2009.pdf.
25 See, e.g., Consolidated Act on Copyright 2010,
No. 202, Art. 50–51 (2010) (Denmark); see also
Copyright Act, No. 404, §§ 13–14 (2010) (Finland).
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While some other countries have
embraced extended collective licensing,
the United States currently does not
have the legal framework for such a
system. Nevertheless, there has been
some discussion that extended
collective licensing might be helpful in
a mass digitization scenario. It is
unclear, however, how extended
collective licensing could integrate with
the current U.S. legal infrastructure to
streamline the licensing process, or
whether it could possibly upset existing
and well-functioning markets for certain
copyright-protected works. Moreover,
the mechanical operation of such a
system is unclear; for example,
questions remain regarding procedures
whereby copyright rights holders may
‘‘opt out’’ of any extended collective
licensing regime.
The Office is interested in discussing
specific details of an appropriate
extended collective licensing system in
the United States for mass digitization
purposes. How might an extended
collective licensing regime be structured
in the United States? Could an extended
collective licensing system be
compatible with U.S. copyright laws,
legal norms, and industry practices?
How much direct oversight should the
Office or any other governmental entity
have over the establishment,
authorization, and/or operation of
collective management organizations?
Are any existing collective management
organizations in the United States
capable of administering an extended
collective licensing regime for mass
digitization? If new collective
management organizations are created,
should they be structured as
government entities, nonprofit entities
licensed and/or funded by the
government, or commercial entities
licensed and/or funded privately or by
the government?
Additionally, the Office recognizes
that the opt-out and orphan works
issues inherent in mass digitization
projects are ripe for further discussion.
For example, should rights holders be
permitted to opt out of any extended
collective licensing system at any time?
How would rights holders’ ability to opt
out affect licensees who may have made
significant investments in the use of
licensed works? How should orphan
works ‘‘incidentally’’ included in a mass
digitization project be handled? Should
the collective management organization
be responsible for attempting to locate
all rights holders and, if so, should a
‘‘reasonably diligent search’’ standard
be applied to the organization? How
should license fees be calculated and
how should remuneration of authors
and authors’ groups be handled? What
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Federal Register / Vol. 79, No. 27 / Monday, February 10, 2014 / Notices
types of entities should be able to utilize
an extended collective licensing system
for mass digitization?
NUCLEAR REGULATORY
COMMISSION
Dated: February 5, 2014.
Karyn A. Temple Claggett,
Associate Register of Copyrights and Director
of Policy and International Affairs.
[Docket No. NRC–2013–0239]
[FR Doc. 2014–02830 Filed 2–7–14; 8:45 am]
BILLING CODE 1410–30–P
Agency Information Collection
Activities: Submission for the Office of
Management and Budget (OMB)
Review; Comment Request
NATIONAL ARCHIVES AND RECORDS
ADMINISTRATION
Nuclear Regulatory
Commission.
ACTION: Notice of the OMB review of
information collection and solicitation
of public comment.
Information Security Oversight Office
SUMMARY:
AGENCY:
[NARA–2014–015]
National Industrial Security Program
Policy Advisory Committee (NISPPAC)
National Archives and Records
Administration (NARA).
AGENCY:
Notice of Advisory Committee
Meeting.
ACTION:
In accordance with the
Federal Advisory Committee Act (5
U.S.C. app 2) and implementing
regulation 41 CFR 101–6, NARA
announces an upcoming meeting of the
National Industrial Security Program
Policy Advisory Committee (NISPPAC).
SUMMARY:
The meeting will be held on
March 19, 2014, from 10:00 a.m. to
12:00 p.m.
DATES:
National Archives and
Records Administration; 700
Pennsylvania Avenue NW., Archivist’s
Reception Room, Room 105;
Washington, DC 20408.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
David O. Best, Senior Program Analyst,
ISOO, by mail at the above address,
telephone (202) 357–5123, or email
david.best@nara.gov. Contact ISOO at
ISOO@nara.gov and the NISPPAC at
NISPPAC@nara.gov.
This
meeting will be open to the public.
However, due to space limitations and
access procedures, the name and
telephone number of individuals
planning to attend must be submitted to
the Information Security Oversight
Office (ISOO) no later than Friday,
March 14, 2014. ISOO will provide
additional instructions for gaining
access to the location of the meeting.
mstockstill on DSK4VPTVN1PROD with NOTICES
SUPPLEMENTARY INFORMATION:
Dated: February 5, 2014.
Patrice Little Murray,
Acting Committee Management Officer.
[FR Doc. 2014–02816 Filed 2–7–14; 8:45 am]
BILLING CODE 7515–01–P
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The U.S. Nuclear Regulatory
Commission (NRC) has recently
submitted to OMB for review the
following proposal for the collection of
information under the provisions of the
Paperwork Reduction Act of 1995 (44
U.S.C. Chapter 35). The NRC hereby
informs potential respondents that an
agency may not conduct or sponsor, and
that a person is not required to respond
to, a collection of information unless it
displays a currently valid OMB control
number. The NRC published a Federal
Register notice with a 60-day comment
period on this information collection on
November 8, 2013 (78 FR 67204).
1. Type of submission, new, revision,
or extension: Extension.
2. The title of the information
collection: 10 CFR part 70, ‘‘Domestic
Licensing of Special Nuclear Material.’’
3. Current OMB approval number:
3150–0009.
4. The form number if applicable: Not
applicable.
5. How often the collection is
required: On occasion. Required reports
are collected and evaluated on a
continuing basis as events occur.
Applications for new licenses and
amendments may be submitted at any
time. Generally, renewal applications
are submitted every 10 years and for
major fuel cycle facilities updates of the
safety demonstration section are
submitted every 2 years. Nuclear
material control and accounting
information is submitted in accordance
with specified instructions.
6. Who will be required or asked to
report: Applicants for and holders of
specific NRC licenses to receive title to,
own, acquire, deliver, receive, possess,
use, or initially transfer special nuclear
material.
7. An estimate of the number of
annual responses: 1,620 responses.
8. The estimated number of annual
respondents: 606.
9. An estimate of the total number of
hours needed annually to complete the
requirement or request: 89.240.6 hours
(81,791.1 hours reporting + 7379.4
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7711
hours recordkeeping + 70.1 hours third
party disclosure).
10. Abstract: Part 70 of Title 10 of the
Code of Federal Regulations (10 CFR),
establishes requirements for licenses to
own, acquire, receive, possess, use, and
transfer special nuclear material. The
information in the applications, reports,
and records is used by NRC to make
licensing and other regulatory
determinations concerning the use of
special nuclear material.
The public may examine and have
copied for a fee publicly-available
documents, including the final
supporting statement, at the NRC’s
Public Document Room, Room O–1F21,
One White Flint North, 11555 Rockville
Pike, Rockville, Maryland 20852. The
OMB clearance requests are available at
the NRC’s Web site: http://www.nrc.gov/
public-involve/doc-comment/omb/. The
document will be available on the
NRC’s home page site for 60 days after
the signature date of this notice.
Comments and questions should be
directed to the OMB reviewer listed
below by March 12, 2014. Comments
received after this date will be
considered if it is practical to do so, but
assurance of consideration cannot be
given to comments received after this
date.
Danielle Y. Jones, Desk Officer, Office of
Information and Regulatory Affairs
(3150–0009), NEOB–10202, Office of
Management and Budget,
Washington, DC 20503.
Comments can also be emailed to
Danielle_Y_Jones@omb.eop.gov or
submitted by telephone at 202–395–
1741.
The Acting NRC Clearance Officer is
Kristen Benney, telephone: 301–415–
6355.
Dated at Rockville, Maryland, this 4th day
of February, 2014.
For the Nuclear Regulatory Commission.
Kristen Benney,
Acting NRC Clearance Officer, Office of
Information Services.
[FR Doc. 2014–02748 Filed 2–7–14; 8:45 am]
BILLING CODE 7590–01–P
NUCLEAR REGULATORY
COMMISSION
[NRC–2014–0001]
Sunshine Act Meeting Notice
Weeks of February 10, 17, 24,
March 3, 10, 17, 2014.
PLACE: Commissioners’ Conference
Room, 11555 Rockville Pike, Rockville,
Maryland.
STATUS: Public and Closed.
DATE:
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Agencies
- Library of Congress
- U.S. Copyright Office
[Federal Register Volume 79, Number 27 (Monday, February 10, 2014)]
[Notices]
[Pages 7706-7711]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-02830]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
U.S. Copyright Office
[Docket No. 2012-12]
Orphan Works and Mass Digitization; Request for Additional
Comments and Announcement of Public Roundtables
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Notice of Inquiry.
-----------------------------------------------------------------------
SUMMARY: The U.S. Copyright Office will host public roundtable
discussions and seeks further comments on potential legislative
solutions for orphan works and mass digitization under U.S. copyright
law. The meetings and comments will provide an opportunity for
interested parties to address new legal developments as well as issues
raised by comments provided in response to the Office's previous Notice
of Inquiry.
DATES: The public roundtables will be held on March 10, 2014 from 9:00
a.m. to 5:00 p.m. EST and March 11, 2014 from 9:00 a.m. to 5:00 p.m.
EST. Written comments must be received no later than 5 p.m. EST on
April 14, 2014.
ADDRESSES:
Public Roundtables
The public roundtables will take place in the Copyright Office
Hearing Room, LM--408 of the Madison Building of the Library of
Congress, 101 Independence Avenue SE., Washington, DC 20559. The
Copyright Office strongly prefers that requests for participation be
submitted electronically. The agendas and the process for submitting
requests to participate in or observe one of these meetings are
included on the Copyright Office Web site. If electronic registration
is not feasible, please contact the Office at 202-707-1027.
Public Comments
Members of the public will have the opportunity to submit written
comments following the public roundtable meetings. The written comments
may address topics listed in this Notice of Inquiry as well as respond
to any issues raised during the public meetings. All written comments
should be submitted electronically. A comment form will be posted on
the Copyright Office Web site at http://copyright.gov/orphan/ no later
than March 12, 2014. The Web site interface requires commenting parties
to complete a form specifying name and organization, as applicable, and
to upload comments as an attachment via a browser button. To meet
accessibility standards, commenting parties must upload
[[Page 7707]]
comments in a single file not to exceed six megabytes (MB) in one of
the following formats: the Adobe Portable Document File (PDF) format
that contains searchable, accessible text (not an image); Microsoft
Word; WordPerfect; Rich Text Format (RTF); or ASCII text file (not a
scanned document). The form and face of the comments must include both
the name of the submitter and organization. The Office will post the
comments publicly on the Office's Web site exactly as they are
received, along with names and organizations. If electronic submission
of comments is not feasible, please contact the Office at 202-707-1027
for special instructions.
FOR FURTHER INFORMATION CONTACT: Karyn Temple Claggett, Associate
Register of Copyrights and Director of Policy and International
Affairs, by telephone at 202-707-1027 or by email at kacl@loc.gov, or
Catherine Rowland, Senior Counsel for Policy and International Affairs,
by telephone at 202-707-1027 or by email at crowland@loc.gov.
SUPPLEMENTARY INFORMATION:
Background: The Copyright Office is reviewing the issue of orphan
works \1\ under U.S. copyright law in continuation of its previous work
on the subject and to advise Congress on potential legislative
solutions. As part of its current review, the Office is considering
recent developments in the legal and business environments regarding
orphan works in the context of: (1) occasional or isolated uses of
orphan works; and (2) mass digitization. In October 2011, the Office
published a Preliminary Analysis and Discussion document (the
``Analysis'') that examined various legal issues involved in mass
digitization projects.\2\
---------------------------------------------------------------------------
\1\ ``An `orphan work' is an original work of authorship for
which a good faith, prospective user cannot readily identify and/or
locate the copyright owner(s) in a situation where permission from
the copyright owner(s) is necessary as a matter of law.'' Copyright
Office Notice of Inquiry, Orphan Works and Mass Digitization, 77 FR
64555 (Oct. 22, 2012), available at http://www.copyright.gov/fedreg/2012/77fr64555.pdf.
\2\ U.S. Copyright Office, Legal Issues in Mass Digitization: A
Preliminary Analysis and Discussion Document (2011), available at
http://www.copyright.gov/docs/massdigitization/USCOMassDigitization_October2011.pdf.
---------------------------------------------------------------------------
Subsequently, to assist with further review of the issue, the
Office published a general Notice of Inquiry (the ``Notice'') seeking
comments from the public on both mass digitization and isolated uses of
orphan works.\3\ The Notice provided background on the Office's
previous review of this issue in its January 2006 Report on Orphan
Works (the ``2006 Report''),\4\ legislation proposed in 2006 and
2008,\5\ the Google Books Search and Hathitrust litigation,\6\ the role
of the Office and private registries in alleviating the orphan works
problem, legal issues in mass digitization, and recent international
developments. In 2013, the Office received ninety-one initial comments
from various interested parties and eighty-nine reply comments. The
Notice, comments, and background materials are available at the
Copyright Office Web site. The Office now announces public roundtables
and seeks further public comments to discuss new legal developments as
well as specific issues raised by earlier public comments as it
considers potential legislative recommendations.
---------------------------------------------------------------------------
\3\ Notice, 77 FR 64555-61.
\4\ U.S. Copyright Office, Report on Orphan Works (2006),
available at http://www.copyright.gov/orphan/orphan-report-full.pdf.
\5\ Shawn Bentley Orphan Works Act of 2008, S. 2913, 110th Cong.
(2008); Orphan Works Act of 2008, H.R. 5889, 110th Cong. (2008);
Orphan Works Act of 2006, H.R. 5439, 109th Cong. (2006).
\6\ Authors Guild, Inc. v. HathiTrust, 902 F. Supp. 2d 445
(S.D.N.Y. 2012); Authors Guild, Inc. v. Google Inc., 770 F. Supp. 2d
666 (S.D.N.Y. 2011) (``Google I'').
---------------------------------------------------------------------------
Subjects of Comments and Public Roundtables: After reviewing the
comments in response to the Copyright Office's prior Notice, the Office
is interested in holding public roundtables to further explore the
issues surrounding orphan works and mass digitization. The Office will
hold the public roundtable discussions over the course of two days. The
first day will cover the following topics: (1) The need for legislation
in light of recent legal and technological developments; (2) defining a
good faith ``reasonably diligent search'' standard; (3) the role of
private and public registries; (4) the types of works subject to any
orphan works legislation, including issues related specifically to
photographs; and (5) the types of users and uses subject to any orphan
works legislation. The second day will include discussions of the
following topics: (1) Remedies and procedures regarding orphan works;
(2) mass digitization, generally; (3) extended collective licensing and
mass digitization; and (4) the structure and mechanics of a possible
extended collective licensing system in the United States. Each of
these topics is explained in more detail below.
Additionally, the Office invites further written comments regarding
the subjects briefly identified above and further explained below,
including from parties who did not previously address those subjects,
or those who wish to amplify or clarify their earlier comments or
respond to issues raised in the public roundtable meetings. A party
choosing to respond to this Notice of Inquiry need not address every
subject below, but the Office requests that responding parties clearly
identify and separately address each subject for which a response is
submitted. Commenters may address any or all of the issues identified
below, as well as provide information on other aspects of these issues
that are relevant to developing potential legislative solutions to the
issues of orphan works and mass digitization.
Day One
Session 1: The Need for Legislation in Light of Recent Legal and
Technological Developments
The Office's 2006 Report concluded that the orphan works problem
was pervasive and provided draft legislative language for congressional
consideration. Though several bills were introduced in 2006 and
2008,\7\ none of them ultimately were enacted. Since then, high-profile
litigation in the United States brought the issue of orphan works back
to the fore. In rejecting the proposed settlement agreement in The
Authors Guild, Inc. v. Google Inc. in 2011, the Southern District Court
of New York explicitly noted that it is Congress, and not the courts,
who should decide how to resolve the issue of orphan works.\8\
Recently, the same district court granted summary judgment to Google on
copyright infringement claims relating to the Google Books Library
Project, concluding that ``Google Books provides significant public
benefits,'' and that its book scanning project constitutes fair use
under U.S. copyright law.\9\ While the court's ruling did find the
Google Books mass digitization project to be fair use, it neither
indicated how broadly the opinion could be used to justify other types
of mass digitization projects nor did it explicitly address the issue
of orphan works.
---------------------------------------------------------------------------
\7\ See supra note 5.
\8\ Google I, 770 F. Supp. 2d at 678. ``Google Books'' is the
larger project that includes the Google Books Library Project and
the Google Books Partner Project (formerly ``Google Print''). Google
commenced its book scanning project (then referred to as ``Google
Print Library Project'') in 2004. In September 2005, the Authors
Guild of America and five publisher members of the Association of
American Publishers (``AAP'') sued Google for copyright
infringement. The Google Books Partner Project was created when
Google and the publishers announced a settlement agreement in
October 2012. References to ``Google Books'' or the ``Google Books
case'' relate to litigation surrounding the Library Project.
\9\ Authors Guild, Inc. v. Google Inc., Case No. 05 Civ. 8136
(DC), 2013 WL 6017130, *26 (S.D.N.Y Nov. 14, 2013) (``Google II'').
---------------------------------------------------------------------------
Similarly, on October 10, 2012, the Southern District of New York
also
[[Page 7708]]
ruled that the digitization project undertaken by the HathiTrust
Digital Library (``HathiTrust'') and its five university partners was
largely transformative and protected by fair use.\10\ The court,
however, did not consider the copyright claims relating to the
HathiTrust Orphan Works Project, finding that the issue was not ripe
for adjudication because the defendants had suspended the project
shortly after the complaint was filed.\11\
---------------------------------------------------------------------------
\10\ HathiTrust, 902 F. Supp. 2d 445.
\11\ Id. at 455-56.
---------------------------------------------------------------------------
In addition to these legal developments, technology has
significantly progressed since Congress last considered the orphan
works issue. Since 2008, technological developments have arguably
mitigated the orphan works problem via vastly improved search tools and
database technology. Improved search engine technology allows users to
locate rights holders (and vice versa) via image, sound, or video
searches. Improved databases, such as the PLUS Registry,\12\ and
database interoperability allow copyright rights holders to better
publicize ownership information. Yet, many argue that these
technologies are not being effectively utilized in the context of
orphan works and a legislative solution remains necessary.
---------------------------------------------------------------------------
\12\ The PLUS Registry (the ``Registry'') is an online database
created and operated by PLUS Coalition, Inc., an international group
of communities ``dedicated to creating, using, distributing and
preserving images.'' Users may search the Registry to find rights
and descriptive information (``metadata'') for any image, and to
find current contact information for related creators, rights
holders and institutions. Owners may register their images and image
licenses to allow authorized users to find rights and descriptive
metadata using a specific ID or image recognition. Plus Coalition,
Inc., ``About,''https://www.plusregistry.org/cgi-bin/WebObjects/PlusDB.woa/1/wo/kl6vPj6TeDu1MqoK7ajbug/0.107.27. The role of private
and public registries is further discussed in Session 3, below.
---------------------------------------------------------------------------
In light of recent legal and technological developments, the Office
is interested in discussing the current need for legislation to address
the issues of orphan works and mass digitization. Specifically, the
public roundtable meetings will allow participants to discuss whether
recent legal developments have obviated the need for legislation, or
whether new legislation would resolve or alleviate the concerns
identified in the comments. Can the orphan works problem be resolved
under existing exceptions and limitations contained in the current
Copyright Act, such as fair use? Should this determination hinge on the
type of use or user making use of the work? If legislation is deemed
necessary, how should it reflect or acknowledge recent developments in
fair use law, if at all?
Additionally, the Office would like to discuss the impact of
technological advancements. For example, have improved search tools and
database technologies mitigated the orphan works problem, or are these
technologies not being effectively utilized in the context of orphan
works?
Session 2: Defining the Good Faith ``Reasonably Diligent Search''
Standard
In its 2006 Report, the Copyright Office recommended that Congress
amend the Copyright Act to limit the remedies available against good
faith users of orphan works after the user performed a generally
``reasonably diligent search'' to locate the owner of that work. The
2008 bills set forth certain baseline requirements such as searching
the Office's online records, and would have required users to consult
best practices applicable to the work at issue. Both copyright owners
and users would have participated in developing these best practices,
which the Register of Copyrights would have coordinated.
The Office is interested in discussing how best to define a good
faith, reasonably diligent search in light of changes in the legal and
technological environment since 2008, and whether improvements can be
made to the standard set forth in the 2008 bills. What are the relative
advantages or risks of flexible versus rigidly-defined search
standards? Additionally, should the Office participate in developing
search criteria or evaluating searches, and should regulations set
forth specific search criteria? Moreover, what should be the role of
community-developed best practices documents that may guide particular
groups of users making particular types of uses, and who should develop
these ``best practices'' documents? Finally, what role should the
Office play in developing, monitoring, or certifying search criteria?
Session 3: The Role of Private and Public Registries
One question regarding orphan works is the role public and private
registries might play in any orphan works solution. The most obvious of
these registries, the Copyright Office's own registration and
recordation system, provides a wealth of copyright information but has
limitations based on both technological requirements and the fact that
registration and recordation is not mandatory in the United States.
There are other registries that have ownership information, and there
has been some suggestion that the Office should investigate enhancing
interoperability between the Office system and private rights
registries.\13\
---------------------------------------------------------------------------
\13\ As mentioned in the Notice, the Office has begun digitizing
its historic records and is initiating upgrades to its registration
and recordation systems. These projects will facilitate public
access to, and thus improve users' ability to investigate, the
copyright status of works, including the identification and location
of copyright owners. The upgrades to the registration and
recordation systems also are meant to facilitate the effective
registration of works and recordation of documents related to
registered works, helping to ensure that the record and contact
information on file with the Office remains accurate. Notice, 77 FR
64558.
---------------------------------------------------------------------------
The Office would like to discuss the role registration and
recordation may play in helping to more effectively mitigate the orphan
works problem. For example, in the context of orphan works, how could
the Office facilitate and incentivize owners to register their works
and keep their ownership and contact information current? Should
failure to register with the Office affect the orphan status of a work?
How could any such incentives be reconciled with the United States'
obligations under the Berne Convention and other international
instruments? Additionally, the Office is interested in learning more
about the appropriate role of third party registries (commercial and
noncommercial). For example, what could be the Office's role in
overseeing or certifying these third party registries? Would it be
helpful for the Office to establish a registry requiring users to
register their use of, or intent to use, orphan works similar to that
envisioned in the Orphan Works Act of 2008? \14\ Does the recently-
passed UK orphan works legislation, which envisions a key role for a
web portal connecting multiple private and public Web sites and
databases, present an attractive model for utilizing and organizing
these registries in the United States?
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\14\ H.R. 5889, 110th Cong. sec. 2(a), Sec. 514(b)(3) (2008).
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Session 4: Types of Works Subject to Orphan Works Legislation,
Including Issues Related Specifically to Photographs
As described in the Office's previous Notice and many of the
responding comments, orphan works remain a pervasive issue in copyright
law. While the issue cuts across all creative sectors, the unique
challenges posed by photographs have long been an obstacle to
developing an effective orphan works solution. Photographs and other
works of visual art may lack or may more easily become divorced from
ownership information, especially in the age of social media that has
largely transpired since Congress considered the 2008 bills. This lack
of identifying
[[Page 7709]]
information often prevents users from locating or even initiating a
search for orphaned photographs' rights holders. The 2008 bills
included a number of provisions specifically aimed at resolving some of
the issues specific to photographs.
In light of the peculiar position of photographs, it is important
to consider how any orphan works solution might address these specific
works, either by creating specific rules or excluding them altogether.
Excluding photographs would not be a novel solution; the European Union
recently approved an orphan works directive (the ``Directive'') that
provides an exception for noncommercial public interest users making
noncommercial public interest uses of orphan works, while providing a
general exclusion of photographs from the scheme.\15\
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\15\ Directive 2012/28/EU, of the European Parliament and of the
Council of 25 October 2012 on Certain Permitted Uses of Orphan
Works, available at http://register.consilium.europa.eu/doc/srv?l=EN&t=PDF&gc=true&sc=false&f=PE%2036%202012%20REV%202. Note,
however, that photographs embedded in other, covered, works (e.g.,
photographs contained in books) are included within this scheme. Id.
at art. 1(4).
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The Office is interested in discussing how to address the problems
presented by certain types of works, including specifically
photographic and visual arts orphan works. Should an orphan works
solution exclude any particular type of work or should it include all
copyrighted works? Would the exclusion of certain types of works
substantially undermine the effectiveness of any orphan works solution?
If all types of works are included, what (if any) special provisions
are required to ensure that all copyright owners, such as
photographers, are treated equitably within the legislative framework?
Do recent developments such as the creation of voluntary registries,
like the PLUS Registry,\16\ mitigate any of the earlier concerns
regarding the treatment of photographs?
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\16\ See Plus Coalition, Inc., supra note 12. Both the 2008
House and Senate bills would have delayed implementation until after
such a registry was developed.
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Session 5: Types of users and uses subject to orphan works legislation
The Copyright Office's previous orphan works review did not
differentiate between commercial and noncommercial uses and users of
orphan works. Since then, however, there has been a debate regarding
whether an orphan works solution should take into account the user's
status as either a commercial or noncommercial entity. For example, the
Directive provides an exception for noncommercial public interest users
making noncommercial public interest uses of orphan works.\17\ Any
solution that excludes commercial users and uses, however, may arguably
provide an incomplete solution. Some have argued that the policy
motivations behind any orphan works legislation logically should extend
to commercial uses that may promote the underlying goals of the
Copyright Act. The United Kingdom's recently adopted orphan works
legislation does not differentiate between commercial and noncommercial
users or uses.
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\17\ See Directive, supra note 15, at art. 6(2).
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The Office thus is interested in learning more about whether an
orphan works solution should encompass both commercial and
noncommercial uses. Should orphan works legislation apply equally to
commercial and noncommercial uses and users? If not, how should
specific types of uses and users be treated within the legislative
framework? Should orphan works legislation be limited only to uses by
noncommercial entities with a public service mission? Should these
entities be permitted to use orphan works only for limited purposes
such as preservation, or should they be able to broadly use orphan
works to provide access to the public? Should commercial entities be
able to make commercial use of orphan works? What are the relative
advantages or disadvantages of allowing such use?
Day Two
Session 1: Remedies and Procedures Regarding Orphan Works
The Office's 2006 Report did not suggest creation of an exception
to copyright for use of orphan works, but instead recommended that
Congress limit the remedies that the copyright owner could seek against
good faith users of orphan works to injunctive relief and ``reasonable
compensation'' for the use of the work. The Office also recommended a
``take-down'' option for certain noncommercial users engaged in
noncommercial activities, which was incorporated in the proposed 2008
legislation. In addition to the take-down provision, the legislation
also would have (1) limited remedies to good faith users of orphan
works having performed a reasonably diligent search, (2) been
applicable on a case-by-case basis, and (3) permitted rights holders to
reasonable compensation, but not statutory damages or attorneys' fees.
The Senate bill would have allowed owners to reclaim their works by
serving a ``Notice of Claim of Infringement,'' requiring the user to
cease the infringement and negotiate in good faith with the rights
holder.\18\
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\18\ S. 2913, 110th Cong. sec. 2(a) Sec. 514(c)(1)(B),
514(b)(1)(A) (2008).
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The appropriate structure and scope of remedies continues to be a
significant issue of concern for both copyright owners and potential
users of orphan works. For example, the threat and unpredictable nature
of statutory damages, the need for predictability and reasonableness in
assessing damages, and the rights available to creators of derivative
works based on orphan works are all issues that warrant further
discussion.
The Office is interested in discussing remedies and procedures in
the context of orphan works. What remedies should be available where
orphan works rights holders emerge after a third party has already
begun to use an orphaned work? What rights should be available for
creators of derivative works based on orphan works? What procedures
should be put in place where these situations arise? Does the
limitation on liability model still make sense in the current legal
environment? Should orphan works legislation instead be re-framed as an
exception to copyright as it is in an increasing number of foreign
jurisdictions?
Session 2: Mass Digitization, Generally
The Office's 2006 Report and the 2008 proposed legislation did not
consider the issue of mass digitization in detail. Although mass
digitization was ongoing in 2008, the practice has since become much
more prevalent. Thus, it is important to understand how mass
digitization fits into an orphan works solution. Because many of the
comments submitted in response to the Notice indicated that the issue
of mass digitization should be treated separately from the issue of
orphan works, it also is important to understand whether mass
digitization fits into an orphan works solution.
The Copyright Office would like to discuss the intersection of mass
digitization and orphan works at the public roundtable meetings. As a
preliminary matter, the Office is interested in discussing what types
of digitization projects should be covered by any legislative proposal,
including the scope of activities that can be accurately described as
``mass digitization.'' Additionally, it is important to review the
relative risks and benefits of mass digitization projects. The Office
would like to discuss the types of entities that might
[[Page 7710]]
be able to engage in such activities under any legislative proposal,
and the types or categories of works that should be covered. Moreover,
under what circumstances should mass digitization projects proceed and
how may digitized materials be used? How might any mass digitization
solution differ from that of a general orphan works solution? Would
potential solutions developed in the context of mass digitization
ameliorate the issue of orphan works? How might these potential
solutions interact?
Session 3: Extended Collective Licensing and Mass Digitization
Several foreign countries have laws that address mass digitization
in different ways. For example, recently-passed legislation in the
United Kingdom creates a bifurcated approach allowing certain types of
individual uses of orphan works and mass digitization.\19\ There,
individual or occasional users of orphan works may apply for a non-
exclusive license from a centralized government or government-
sanctioned private agency on payment of a license fee held in escrow
should rights holders re-emerge.\20\ Users also must perform a diligent
search for the rights holder, which must be verified by the authorizing
body before a license will be issued.\21\ Cultural institutions
engaging in mass digitization, on the other hand, may digitize works
(including orphan works) in their existing collections through an
extended collective licensing regime.\22\ The licenses granted are not
exclusive and all rights holders have the right to opt out of any
license.\23\ Hungary has adopted a similar two-tier orphan works
solution.\24\ Several Nordic countries also have adopted extended
collective licensing regimes for limited types of works and uses in the
context of mass digitization.\25\
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\19\ See Enterprise and Regulatory Reform Act, 2013, c. 24,
Sec. 77, available at http://www.legislation.gov.uk/ukpga/2013/24/section/77.
\20\ Id.
\21\ Id.
\22\ Id. In extended collective licensing models,
representatives of copyright owners and representatives of users
negotiate terms that are binding on all members of the group by
operation of law (e.g., all textbook publishers), unless a
particular copyright owner opts out. Extended collective licensing
regimes authorize the grant of broad licenses to make specified uses
of in-copyright works for which it would be unduly expensive to
clear rights on a work-by-work basis (e.g., mass digitization of in-
copyright works, photocopying in-copyright articles in library
settings). The government or a trusted designee typically
administers payments. It is not quite compulsory licensing in that
the parties (rather than the government) negotiate the rates, but it
nevertheless requires a legislative framework and often involves
some degree of government oversight. See Notice, 77 FR 64559.
\23\ Enterprise and Regulatory Reform Act 2013 at Section 77.
\24\ 100/2009 (V. 8) Korm. rendelet az [aacute]rva m[uuml] egyes
felhaszn[aacute]l[aacute]sainak enged[eacute]lyez[eacute]s[eacute]re
vonatkoz[oacute] r[eacute]szletes szab[aacute]lyokr[oacute]l
(Government Regulation on the Detailed Rules Related to the
Licensing of Certain Use of Orphan Works), arts. 2(1), 2(2), 3
(Hung.), available at http://www.hipo.gov.hu/English/jogforras/100_2009.pdf.
\25\ See, e.g., Consolidated Act on Copyright 2010, No. 202,
Art. 50-51 (2010) (Denmark); see also Copyright Act, No. 404,
Sec. Sec. 13-14 (2010) (Finland).
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The Office is interesting in reviewing the option of extended
collective licensing for purposes of mass digitization in detail. For
example, the Office is interested in discussing whether the United
States should look abroad to foreign extended collective licensing
approaches for ideas on domestic action on the issue of mass
digitization. If so, which approach or components of any particular
approach present attractive options for a potential U.S. course of
action? Should such a system include both commercial and noncommercial
uses, or be limited to noncommercial entities? How do extended
collective licensing systems work in practice in the countries where
they have been adopted? Are there statistics or any longitudinal data
regarding the success of extended collective licensing regimes,
particularly vis-[agrave]-vis orphan works and mass digitization,
around the world? Further, would the U.S. political, legal, and market
structures, which can be quite different from foreign counterparts,
support an extended collective licensing-type solution?
Session 4: The Structure and Mechanics of a Possible Extended
Collective Licensing System in the United States
Extended collective licensing systems exist where representatives
of copyright owners and users negotiate terms that are binding on both
members and similarly situated non-members of the group by operation of
law, unless an interested copyright rights holder elects to opt out.
Collective management organizations function by establishing,
collecting, and distributing these license fees. These organizations
typically are sanctioned or overseen by the government. Where these
organizations collect licensing fees relating to orphan works, they
typically hold these fees until the owner emerges to collect the fee or
for a statutorily set period of time. In this way, extended collective
licensing may present an option for resolving many of the issues
inherent in mass digitization projects, especially as they relate to
the incidental digitization of orphan works contained in these
digitized collections.
While some other countries have embraced extended collective
licensing, the United States currently does not have the legal
framework for such a system. Nevertheless, there has been some
discussion that extended collective licensing might be helpful in a
mass digitization scenario. It is unclear, however, how extended
collective licensing could integrate with the current U.S. legal
infrastructure to streamline the licensing process, or whether it could
possibly upset existing and well-functioning markets for certain
copyright-protected works. Moreover, the mechanical operation of such a
system is unclear; for example, questions remain regarding procedures
whereby copyright rights holders may ``opt out'' of any extended
collective licensing regime.
The Office is interested in discussing specific details of an
appropriate extended collective licensing system in the United States
for mass digitization purposes. How might an extended collective
licensing regime be structured in the United States? Could an extended
collective licensing system be compatible with U.S. copyright laws,
legal norms, and industry practices? How much direct oversight should
the Office or any other governmental entity have over the
establishment, authorization, and/or operation of collective management
organizations? Are any existing collective management organizations in
the United States capable of administering an extended collective
licensing regime for mass digitization? If new collective management
organizations are created, should they be structured as government
entities, nonprofit entities licensed and/or funded by the government,
or commercial entities licensed and/or funded privately or by the
government?
Additionally, the Office recognizes that the opt-out and orphan
works issues inherent in mass digitization projects are ripe for
further discussion. For example, should rights holders be permitted to
opt out of any extended collective licensing system at any time? How
would rights holders' ability to opt out affect licensees who may have
made significant investments in the use of licensed works? How should
orphan works ``incidentally'' included in a mass digitization project
be handled? Should the collective management organization be
responsible for attempting to locate all rights holders and, if so,
should a ``reasonably diligent search'' standard be applied to the
organization? How should license fees be calculated and how should
remuneration of authors and authors' groups be handled? What
[[Page 7711]]
types of entities should be able to utilize an extended collective
licensing system for mass digitization?
Dated: February 5, 2014.
Karyn A. Temple Claggett,
Associate Register of Copyrights and Director of Policy and
International Affairs.
[FR Doc. 2014-02830 Filed 2-7-14; 8:45 am]
BILLING CODE 1410-30-P