Internal talk:Public Policy/Orphan works

Proposal from Copyright Office

The 2006 proposal by the Copyright Office, summarized on p.8, about what to do about orphan works seems appropriate. I believe it did not become law. They may be holding these workshops to rebuild support for it or something like it. Basically it says the user of an orphan work has to make "diligent" efforts to find the proper owner and license it. The Copyright Office does or would have materials online to help the person search and "diligent" would be defined partly by evidence that the user had used those materials. Potential users who can't find the owner could use the material, labeling it as an orphan work. Seems good to me. Can we back that? And/or, is the labeling requirement excessive for Wikimedia? -- Econterms (talk)

Comments from Slowking4

• Slowking4 and I conversed by "google hangout" -- my first time, maybe.
• He says: "We want a procedure that we can say we followed in the metadata of an uploaded file. We'll put it in the licensing terms e.g. on commons. it gives a "safe harbor" - a defense for the good faith. we could also have a licensing procedure going forward. they could migrate it to flicker, after it had been digitized by Wikimedians. The copyright holder would benefit from it. (just pennies normally). it cuts through the uncertainty. if we agree to the procedure we can keep these cases out of court. This way nobody needs to threaten that. We are already doing well at crediting the source of photos."
• He says also: "We're in favor of any reform. We do not need to take a specific stance on specific legislation here. Our principles are clear and simple."
• He has meetings tomorrow that prevent him from making it to the Tuesday evening gathering. He thinks we will have something close to a consensus and so he is not anxious about missing this one meeting."
• We can mention in our briefings in April, and suggested congressional briefings prep on April 12, and briefings themselves on April 14. Could include students.

Definitions

Source: 2006 copyright office Report on Orphan Works

• orphan works -- These are works whose copyright owners cannot be identified or cannot be located, and therefore permission cannot be obtained from them for using the works. (The category may also include works for which it is not known whether a copyright currently applies, but I'm not seeing sources say that.)
• registry -- in this context, this would be a database where works and their copyright ownership are listed and searchable.
• 1976 Copyright Act -- this U.S. law removed the requirement that a work be registered with the Copyright Office, and switched to the mode that a copyright applies as soon as a work is "faxed in a tangible medium of expression." The previous law was the 1909 Act. This is a simplification.
• Berne Convention -- this treaty on copyrights forbids national laws from imposing the requirement that creators of works would have to register them explicitly, or renew them, or give certain kinds of notice to users.
• (reasonably) diligent search -- a likely requirement of a law permitting the use of orphan works is that the user has tried to search for the copyright owner, and the law introduces less friction to the extent if makes a clear explicit feasible to-do list for that user to satisfy the search requirement. So one "diligent search" requirement might be that the user has conducted certain queries to specific registries to see if the works were listed there.
• no response case -- suppose a copyright owner is identified but does not respond to requests by potential users of the work. The Copyright Office report recommends against calling this an "orphan works" case, because the copyright owner is not obliged to respond. However this is in the class of marginal cases that commentators of the orphan-works cases sometimes mention or make recommendations about.