[Federal Register Volume 79, Number 27 (Monday, February 10, 2014)]
[Notices]
[Pages 7706-7711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-02830]
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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
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Notice of Inquiry.
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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 [email protected], or
Catherine Rowland, Senior Counsel for Policy and International Affairs,
by telephone at 202-707-1027 or by email at [email protected].
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\
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\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.
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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.
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\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'').
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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.
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\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'').
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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\
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\10\ HathiTrust, 902 F. Supp. 2d 445.
\11\ Id. at 455-56.
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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.
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\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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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\
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\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.
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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