[License-discuss] Orphan Works: Summary of proposed 17 USC 514

[Henrik Ingo]

Thanks Larry

This is interesting indeed. This is so unusual that I have to ask:
what is the political context that has given rise to such a proposal
that would make copyright law more sane, where usually all lobbying
effort is towards more and longer restrictions?

henrik

On Thu, Dec 3, 2015 at 8:56 PM, Lawrence Rosen <lrosen at rosenlaw.com> wrote:
> For those who don't want to read the entire report, below is a summary of
> draft U.S. copyright legislation, 17 U.S.C. Sec. 514, "Limitation on
> remedies in cases involving orphan works."
>
>
>
> The orphan works problem is referred to as "perhaps the single greatest
> impediment to creating new works." Anyone using an orphan work does so under
> a cloud, as there is always the possibility that the copyright owner could
> emerge after use has commenced and seek substantial infringement damages, an
> injunction, and/or attorneys' fees. A user's ability to seek permission or
> to negotiate licensing terms is compromised by the fact that, despite his or
> her diligent efforts, the user cannot identify or locate the copyright
> owner.
>
>
>
> This legislation proposed by the U.S. Copyright Office can have significant
> impacts on both U.S. and worldwide copyright practices for literary works –
> including software and open source.
>
>
>
> /Larry
>
>
>
> ******************
>
>
>
> ·       Establish a limitation on remedies for copyright infringement for
> eligible users who can prove they have engaged in a good faith diligent
> search for the owner of a copyright and have been unable to identify or
> locate him or her;
>
>
>
> ·       Define a diligent search as, at a minimum, searching Copyright
> Office records; searching sources of copyright authorship, ownership, and
> licensing; using technology tools; and using databases, all as reasonable
> and appropriate under the circumstances;
>
>
>
> ·       Require the Copyright Office to maintain and update Recommended
> Practices for diligent searches for various categories of works, through
> public consultation with interested stakeholders;
>
>
>
> ·       Permit a U.S. court, in its determination of whether a particular
> search qualifies under statute, to take into account a foreign
> jurisdiction's certification that a search was in good faith and
> sufficiently diligent, provided the foreign jurisdiction provides similar
> treatment to qualifying U.S. searches;
>
>
>
> ·       In addition to a diligent search, condition eligibility on a user
> filing of a Notice of Use with the Copyright Office, providing appropriate
> attribution, and engaging in negotiation for reasonable compensation with
> copyright owners who file a Notice of Claim of Infringement, among other
> requirements;
>
>
>
> ·       Limit monetary relief for infringement of an orphan work by an
> eligible user to "reasonable compensation" – the amount that a willing buyer
> and a willing seller would have agreed upon immediately before the use
> began;
>
>
>
> ·       Bar monetary relief for infringements of orphan works by eligible
> nonprofit educational institutions, museums, libraries, archives, or public
> broadcasters, for noncommercial educational, religious, or charitable
> purposes, provided the eligible entity promptly ceases the infringing use;
>
>
>
> ·       Condition injunctive relief for infringement of orphan works by
> accounting for any harm the relief would cause the infringer due to its
> reliance on its eligibility for limitations on remedies;
>
>
>
> ·       Limit the scope of injunctions against the infringement of an orphan
> work if it is combined with "significant original expression" into a new
> work, provided the infringer pays reasonable compensation for past and
> future uses and provides attribution;
>
>
>
> ·       Allow a court to impose injunctive relief for the interpolation of
> an orphan work into a new derivative work, provided the harm to the
> owner-author is reputational in nature and not otherwise compensable;
>
>
>
> ·       Condition the ability of state actors to enjoy limitations on
> injunctive relief upon their payment of any agreed-upon or court-ordered
> reasonable compensation; and
>
>
>
> ·       Explicitly preserve the ability of users to assert fair use for uses
> of orphan works.
>
>
>
> "Orphan Works and Mass Digitization":
> http://copyright.gov/orphan/reports/orphan-works2015.pdf
>
>
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