Copyright Issues Become Cloudy When Content Owners Can't Be Found - InformationWeek

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5/29/2008
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Copyright Issues Become Cloudy When Content Owners Can't Be Found

Congress is considering changes to the way libraries, historians, museums, publishers, writers, filmmakers, musicians, and others can use copyright-protected works whose owners cannot be found.

Orphan works reform took center stage at the Eighth Annual Intellectual Property Symposium this week. Orphan works refers to content whose owners can't be found.

Public Knowledge President and Co-Founder Gigi B. Sohn spoke about the issue Thursday, during the symposium at the University of Maryland University College. The group's aim is to represent consumers and the public on technology policy issues.

Congress is considering changes to the way libraries, historians, museums, publishers, writers, filmmakers, musicians, and others can use copyright-protected works whose owners cannot be found. In many instances, people are reluctant to use, display, or reproduce the works because they cannot obtain permission to use the works and fear liability for copyright infringement.

The problem arose because works do not need to be registered to fall under copyright protection laws.

Congress is considering reform legislation that would let users off the hook for copyright infringement if they could show they made a "diligent" or "reasonable and appropriate" effort to find the copyright holder for permission and filed notice. The standards would be outlined in "best practices" determined by the government. Copyright holders who found out that their works had been used without permission, after a diligent search, could receive "reasonable compensation."

The U.S. Copyright Office has received more than 850 responses to the proposal, which is gaining support in both the U.S. Senate and the House of Representatives.

Public Knowledge supports the bills, but Sohn said her group wants to "iron out a couple of kinks in the legislation." She also said opponents -- who include the National Press Photographers Association and other artists -- are spreading "fear, uncertainty, and doubt" about the legislation.

She said that courts, not government agencies, should determine whether a user performed a diligent search. Sohn also said that requirements to register works in an archive should not be costly. The government currently estimates that archiving could cost $38 per page, a price Sohn said could keep large volumes and works in the closets of museums.

Finally, Public Knowledge takes issue with parts of a "safe harbor" clause for nonprofit institutions, like universities, libraries, museums, and public television. Congress would exempt those institutions from paying fees if they removed works after copyright holders reappear. Sohn supports that exemption, but takes issue with a stipulation requiring that the work is not used for "direct or indirect commercial advantage."

"Just because a museum may sell an exhibit catalogue that uses an orphan work in its gift shop doesn't necessarily mean that it is using the work for 'commercial advantage,'" she said during her speech at the symposium. "While indeed such sales are commerce, they are used to fund the nonprofit educational mission of the institution, not for profit"

And, she said that a requirement that institutions relinquish proceeds from the use of orphan works could raise questions about giving up admission fees from an orphan works exhibit that is later removed.

Stanford University Law professor Lawrence Lessig opposes the legislation. He argued in a recent New York Times opinion piece that: the bill does not distinguish between old and new, or foreign and domestic works; creators who have relied on a 1978 law that protects their work without registration would be exposed to infringement; and the bill would not simplify the process of dealing with orphan works.

He said Congress should tackle orphan works reform the way the country has legislated patents: requiring a $1 registration after a period (14 years) of automatic protection for domestic works. He said foreign works, and those produced between 1978 and now, should be protected without registration, so rights holders aren't burdened with "formalities." He said the law should not apply to images until technology allows for reliable and simple registration and searches.

Google, which could create a database for registration and searches, supports the bill.

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