[Federal Register Volume 79, Number 27 (Monday, February 10, 2014)]
[Pages 7706-7711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-02830]



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.

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].

    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 

    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 

[[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 
Session 2: Defining the Good Faith ``Reasonably Diligent Search'' 
    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 

    \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 

    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?

    \14\ H.R. 5889, 110th Cong. sec. 2(a), Sec.  514(b)(3) (2008).

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\

    \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).

    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?

    \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.

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.

    \17\ See Directive, supra note 15, at art. 6(2).

    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 

    \18\ S. 2913, 110th Cong. sec. 2(a) Sec.  514(c)(1)(B), 
514(b)(1)(A) (2008).

    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 
    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 
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\

    \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).

    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 
    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]