Orphan Works Research Articles

Keynote Address: Orphan Works & Mass Digitization: Obstacles & Opportunities

Keynote Address: Orphan Works & Mass Digitization: Obstacles & Opportunities

The New Orphan Works Regulation of Hungary

The Hungarian Parliament accepted a regulation to settle the orphan works dilemma in 2008. Under this system the Hungarian Intellectual Property Office grants a license to applicants to use orphan works under limited circumstances. Since the entry into force of the amendment of the Hungarian Copyright Law in 2009 the system had modest success. Due to the acceptance of the Orphan Works Directive in 2012, however, it became necessary to amend the Hungarian Copyright Act to introduce the new limitation granted by the directive for beneficiary institutions. The future Hungarian regime will therefore include both systems: the licensing model (for the benefit of every user) and the limitation model (for the benefit of specific institutions). The paper introduces the main points of the former (old) regime, and also includes comments and criticism of the experiences of the past 5 years. Further the paper summarizes the key elements of the implementation of the directive and highlights its prospective positive effects and the drawbacks of the legislation (both the statute and the government decree) as well.

Ciné-Forum: A Luminous Moment in the History of Canadian Underground Exhibition: The Blinding Light!! Cinema in Vancouver

The history of film exhibition is incomplete without close attention to the variety of irregular locales and their programming that audiences have had the opportunity to frequent. The word has been used to delineate practices outside the mainstream, whether in relation to films, filmmakers or cinemas. In the 1950s, Manny Farber employed the word to refer to seedy New York that catered to working class men attracted to muscular action films, whereas Jonas Mekas in the 1960s used the word to refer to a group of experimental filmmakers remaking film culture. In actual fact, Farber came to use the term in both senses. Contrast his classic 1957 essay Underground Films in which he extols the virtues of Howard Hawks and pre-Sfagecoac/t John Ford, with his 1969 essay, Canadian Underground, in which he champions Michael Snow's Wavelength (1967), noting ironically that it depicted a room similar to the basement room in Toronto in which it was exhibited.1 Whether catering to an underclass or to a group of filmmakers and spectators bored and irritated with normal cinema consumption, underground exhibition plays an important role in society; indeed, one might argue that it is a sign of a city's cultural well-being that unconventional films and film events can be experienced on a regular basis. To use one's disposable income on low budget filmmaking in a low-rent and often subterranean space is akin to bypassing large corporations to support a cottage industry. Call it low capitalist decision-making, if not exactly resistance.The exhibition environment for films can be as ephemeral as the films themselves. In recalling a bygone era of filmgoing, we are resurrecting not just empirical facts but a moving image history, a conscious way of seeing, that is mediated by the chosen location and programming of the exhibitor. The Blinding Light!! Cinema in Vancouver ran films six nights a week from August 1998 to August 2003. This microcinema with 103 seats (although up to 150 people could be squeezed in) became a centre for screening rare and orphan works, and served as a catalyst for new works to be created. This case study allows us to consider what may have been lost to public memory and to the city's cultural offerings in the age of film viewing sites such as YouTUbe and Vimeo.2 1 am hopeful that this account might spark interest in similar small screening spaces and microcinemas across the country as objects of study.3If you were in Vancouver in the late 1990s in search of a movie fix, and chose to give the two porn theatres (now closed) a miss, your choices of theatres were the Alcan Omnimax theatre inside Science World, Capitol 6 (now closed), CN IMAX Theatre in Canada Place, Denman Place Discount Cinema (now closed), Dunbar Theatre, Fifth Avenue Cinemas, Granville 7 (now closed), The Hollywood Theatre (now closed), Oakridge Centre (now closed), Pacific Cinematheque, Paradise Theatre (now closed), Van East Cinema (now closed), The Park Theatre, The Ridge Theatre (now closed) Tinseltown cinemas, Vancouver Centre (now closed), and The Varsity Theatre (now closed). This meant that one would have had a choice among thirty-five to forty screens, although some overlapping films would have reduced one's mainstream options. In addition, a brief line or two in the weekly Georgia Straight under Repertory cinemas would alert you to the offerings of The Blinding Light!! Cinema.The history of this microcinema is linked inextricably with its founder Alex Mackenzie, who moved from Montreal to Vancouver in 1990 and soon became involved with the Cineworks Film Co-op, the Latin-American film distributor Idera, and the Pacific Cinematheque. Mackenzie started to make short experimental films of his own while immersing himself in the film culture Vancouver offered. Inspired by the now defunct Pike Street cinema in Seattle that, for Mackenzie, memorably screened a series of old Church of Latter Day Saints propaganda films, he rented a storefront at the north end of Commercial Drive in East Vancouver. …

Fair Use & Mass Digitization: The Future of Copy-Dependent Technologies After Authors Guild v. HathiTrust

This Note discusses the future of digital libraries and other products reliant on mass digitization in the wake of the HathiTrust decision. First, this Note presents an overview of U.S. copyright protection and the ways in which its goal of incentivizing authors has consistently been balanced by efforts to protect preservation, access, and fair use. Next, the Note explores early formalities and the establishment of the national archive before discussing the modern Copyright Act and its series of statutory exemptions. After outlining the statutory provisions, the Note then discusses the fair use doctrine, focusing on its application to cases involving use for educational and research purposes. Second, this Note discusses the trial court opinion in Authors Guild, Inc. v. HathiTrust and the court’s fair use finding regarding the full-text search index and copies for the print disabled. The Note argues that this decision rightly solidifies the growing body of jurisprudence protecting uses that have a transformative purpose and that pose no threat of artistic substitution while providing a public benefit. However, the Note also argues that the same consideration cannot be applied to HathiTrust’s copies for the print-disabled and that the trial court’s fair use application and interpretation of § 121 may be narrowed or corrected on appeal. Third, this Note discusses the HathiTrust decision’s effect on the future of the Google Books case and argues that the fair use ruling paves the road for a similar finding while also giving Google leverage in its ongoing settlement negotiations. The Note argues that Google’s fair use defense is equally as strong as HathiTrust’s despite Google’s commercial exploitation because no artistic substitution exists and Google Books helps rather than harms the market for the copyrighted works. Fourth, after exploring the judicial efforts to protect useful technologies as a matter of public policy, this Note explores legislative solutions that would better advance copyright’s goals of promoting education, research, preservation, and access. The Note advocates for (1) expansion of § 108 library privileges to cover mass digitization and noncommercial exploitation; (2) expansion of protected entities that may make copies for the print-disabled under § 121; (3) establishment of a regulatory board to govern the exploitation of orphan works; and (4) categorical protection for technological uses that make use of copyrighted works in a way that does not substitute for the original’s expressive content.

After Google Book Search: Rebooting the Digital Library

The rejection of the Google Book Search settlement means that we are at a point of rebooting how we design our digital library future. There were many criticisms of GBS and the settlement but perhaps chief among those was the risk that approval of the settlement would have locked in a single approach to digital libraries. Google would have received unique access to the so-called orphan works and that would have provided it what may have been a decisive advantage against digital library competitors, both private and public. As we move forward on the orphan works, we need to do so with two principles in mind. First, we need to enable broad competing uses of the orphan works while, to the greatest extent possible, respecting the rights of the orphan works holders. Second, we should not repeat the mistake of the GBS settlement by somehow tilting the table in favor of digital library monopoly, either public or private.We should want to foster a rich digital library ecosystem. GBS makes clear that we can have large-scale private digital libraries. That is an important development and one that we should seek to enable. If we create use rights for copyrighted works for digital libraries, we should be sure to make those privileges available to both public digital libraries and private digital libraries such as GBS and its successors. Our existing statutory safe harbors for libraries favor noncommercial libraries and archives. The emergence of GBS suggests that that is too narrow a conception of what libraries can be in the digital age and we need a statutory scheme that supports that.

The Orphan Works Directive, or throwing a stone and hiding the hand

Dr Eleonora Rosati is an Italian-qualified lawyer (avvocato) and researcher at the European University Institute (Florence, Italy) where she has been recently awarded a PhD in copyright law. Eleonora, who has worked for Bird&Bird LLP both in Milan and London, is also part of The 1709 Blog and The IPKat blogging teams, for which she reports and comments on IP-related news from all over the world. Directive 2012/28 on certain permitted uses of orphan works was adopted at the end of October 2012. The directive intends to provide a legal framework to facilitate the digitisation and dissemination of orphan works, these being works and other subject-matter which are protected by copyright or related rights and for which no right holder is identified or for which the right holder, even if identified, is not located. The adoption of this directive was justified in light of insufficient action at the sole level of Member States and was meant to enhance EU competitiveness, while contributing also to the realisation of key actions of the Digital Agenda for Europe. It is submitted that none of these underlying objectives has been fully achieved by the directive, which contains numerous notions with an obscure meaning. As a result, Member States have been left with the difficult task of adopting implementing legislations. These have the potential to differ greatly at national level. The article concludes by arguing that, also in the case of orphan works, as has happened elsewhere, the Court of Justice of the European Union (CJEU) will have to fill in many of the blanks left by EU legislation.

The Authors Guild v. Hathitrust: A Way Forward for Digital Access to Neglected Works in Libraries

Due to changes in copyright law since the United States joined the Berne Convention, a growing number of copyright holders cannot be located. This leads to a market failure in which those who would pay a reasonable licensing fee nevertheless cannot make use of the works. While past literature has focused on desired commercial uses of these so-called orphan works, the recent case of The Authors Guild v. HathiTrust has brought the issue of educational, nonprofit uses of these works to the fore. This Comment begins by describing the HathiTrust Orphan Works Project and what it renames the neglected works problem. Next, it examines the legality of the project under current copyright law, focusing mainly on fair use under section 107, and concludes that it is unclear whether the project violates copyright law. Finally it analyzes whether this result fits the policy goals of copyright, and because it does not, proposes both legislative and judicial changes to copyright law to make it clear that in the proper circumstances, nonprofit, educational uses of neglected works do not violate copyright law.

Solving the Orphan Works Problem for the United States

Introduction and Background 3 I. The Orphan Works Problem Is Not a Myth 4 A. The Large Number of Orphan Works Stifles Library and Archive Use 5 B. The Orphan Works Problem Is the Logical Result of Changes to U.S. Copyright Law Over the Last Several Decades 12 II. Social Benefits Would Flow from Making Orphan Works Accessible 14 A. Collection, Curation, and Digitization 16 B. Preservation 17 C. Indexing 18 D. Providing Access to Cultural Resources 19 1. Direct Access to Works 19 2. Text Mining and Other New Research Opportunities 21 E. Providing Cultural and Historical Meaning by Placing Works in Context 22 III. Approaches for Facilitating Access to and Use of Orphan Works 23 A. Fair Use and Best Practices 23

Solving the Orphan Works Problem for the United States

Over the last decade, the problem of orphan works—i.e., copyrighted works whose owners cannot be located by a reasonably diligent search—has come sharply into focus as libraries, archives and other large repositories of copyrighted works have sought to digitize and make available their collections online. Combined with new technology that has changed the way that copyrighted works are created and the way that consumers expect to access and use copyrighted works, the orphan works problem has grown into a significant and, as former Register of Copyrights Marybeth Peters observed, a “pervasive” problem. Although this problem is certainly not limited to digital libraries, it has proven especially challenging for these organizations because they hold diverse collections that include millions of books, articles, letters, photographs, home movies, films and other types of works. Many items come with a complex, unknown and often unknowable history of copyright ownership. Because U.S. copyright law provides for both strong injunctive relief and monetary damages (in the form of statutory damages of up to $150,000 per work infringed), organizations that cannot obtain permission often do not make their collections available at all. Large projects, such as Google Book Search and the HathiTrust digital library, which aim in part to address orphan works on a larger scale, have been drawn into litigation.

Reply Comment of International Documentary Association et al., In the Matter of Orphan Works and Mass Digitization, No. 2012-12

Comment submitted to U.S. Copyright Office in response to Notice of Inquiry on behalf of a coalition of documentary and independent film organizations. The commenters elaborate on the proposed orphan works solution that they support, and clarify the effect they believe the solution will have on stakeholders throughout the copyright system. The commenters observe support among a wide range of stakeholders for the Copyright Office’s 2005 approach, and remain convinced that this approach — a diligent search requirement before use, a limitation on remedies beyond reasonable compensation for rightsholders who later resurface, exceptions for non-commercial uses in some circumstances, and a savings clause that preserves fair use — is the optimal solution for the United States. In the commenters' view, this approach is the most likely to help users make valuable uses of orphan works, enhance the market for licensed works, and reduce the number of orphan works going forward.

National Libraries and Copyright in the Digital Age — The German Situation for Orphan Works and Out-of-Print Works

Lynne Brindley was a tireless advocate in the UK for a system of copyright fit for the digital age. This article describes the German situation for orphan works and out-of-print works in the light of the recently published European Directive (2012/28/EU). The author argues that a modern copyright framework which applies to the digital world is urgently needed that takes into account the different needs of each stakeholder.

Google Books and Other Internet Mischief

Aristotle said about reasoning that a little mistake at the beginning becomes a big mistake at the end.-George F. Will (1983: 18)Google Books. United States Circuit Judge Denny Chin, sitting by designation on a case he inherited from his days on the District Court bench, took the unusual move of refusing to enter a settlement in the matter of Google Books, despite its being agreed to by both sides and its being widely lauded in the press, and despite his earlier approval of a preliminary version.He did this, nominally, based on numerous objections his Court received as well as a few but substantial amici curiae tendered in opposition to the settlement-but, in fact, or at least, in effect, on a very lengthy period of reconsideration strongly suggesting an action on his own motion. That took courage, and because of that he deserves one cheer.But the settlement1 is far more flawed than the judge allowed in his opinion and the matter requires much more courageous action. Class-action suits are an essential part of the U.S. legal landscape because of the high costs of filing suit against such major players as Google. At the same time, most class-action suits are settled for prudential reasons and offer class members little relief and the attorneys putatively representing them a rather large pay check. This case is an exception to no part of this generalization.Google is probably the single most ethical firm among the major IT (information technology) players. Nevertheless, in this matter, it has acted so badly as to almost defy belief. I am unaware, in the entire annals of U.S. history, of a U.S. company in all but name declaring an entire Title of the United States Code (here, Title 17, the law governing copyright) null and void. Moreover, Google did not act alone, but in concert with a number of putatively not-forprofit libraries, which received good and valuable considerations for rendering material assistance without which the project would have been impossible.Moreover, Google's defenses are risible. Although fair use does allow the quotation of snippets of a work-and not necessarily only short ones, it certainly does not either (a) allow the scanning of entire works or (b) allow the snippets quoted to depend-as Google's do-on search terms entered, because that, of course, allows any user to find exactly what he wants thereby destroying utterly the market value of such works in two ways-first, the obvious way, by giving the potential buyer what and exactly what he seeks, and, second, working from multiple stations-or perhaps the same station at multiple times-to recover much and perhaps all of the work, thereby again completely destroying the market value of the work, even if the user wants to read a good deal more of the book and is not seeking its use as a source of context-sensitive information.2The other defense Google raises, that of orphan works, is, as Judge Chin noted, a matter for the Congress, but beyond that it is entirely disingenuous. Yes, as Judge Chin observed, Google notified class members effectively and promptly-but only after being sued in federal court. If Google were really concerned with orphan works, why was no attempt made to contact even duly registered copyright holders before-the-fact? Google, of all folks, can surely type into its (excellent) Chrome browser http://www.copyright.gov/records.Nor would Judge Chin's proposal to alter the settlement from opt-out to opt-in be of any real assistance. This is because authors who do not care about what Google has done must already, if only in effect, opt in, by claiming their books and inserts. Most authors who have done so have no doubt done so for the reason I have: the old adage about half a loaf being better than no loaf.Sadly, Google has learned absolutely nothing from its flagrant violation of the law, or my recommendations might differ. It has repeated its wholesale violations of Title 17 with Google Scholar, not a subject of the suit, and in scanning whole issues and then using context-sensitive snippets of copyrighted magazines and journals within Google Books, also not covered by the suit, and in continuing its original project for books published after the cutoff date, which, too, are not covered by the suit. …

Law versus technology: looking for a solution to the orphan works' problem

Law versus technology: looking for a solution to the orphan works' problem

Optimizing use of orphan works while respecting intellectual property rights: a Law and Economics perspective

Orphan works restrict new uses allowed by digital technologies. Indeed, an orphan work is a work that is protected and disclosed and whose right holders cannot be identified or located, despite due diligence. So they raise the traditional economic dilemma posed by intellectual property: Should we favour right holders through exclusive monopolies, or give priority to the spreading of culture and knowledge? In a Law and Economics perspective we wonder what legislative changes could lead to optimal solutions. We first present the risks of economic inefficiency current legislation has resulted in, such as the loss of social well-being and the importance of transaction costs, and estimate the ratio of orphan works in France. We then summarize the different expectations of market actors with regard to optimal use of these works so as to better analyse the field of possible scenarios, taking into account both economic and legal constraints.

Orphan works: vitalization, modification, and creation of an international norm

‘A book may be good for nothing; or there may be only one thing in it worth knowing; are we to read it all through?’ (Samuel Johnson) This section is dedicated to the review of ideas, articles, books, films and other media. It will include replies (and rejoinders) to articles, the evaluation of new ideas or proposals, and reviews of books and articles both directly and indirectly related to intellectual property law. This note proposes and analyses solutions to the orphan work issue: dynamic interpretation, as well as objective and subjective interpretations of the non-formality principle, and solutions beyond the interpretation of the current norms—ie the limitations and exceptions, including the compulsory licence, and also the establishment of applicable laws on IP. Under the non-formality principle, many copyright works are not registered, so their identity or location is unknown (orphan works). Dynamic interpretation of the non-formality principle,...

A critical view on the European draft directive for orphan works

<section class="abstract"> For some time now, the orphan works problem has had its place on the agenda of the European Commission. Orphan works are copyright protected works whose copyright holder(s) cannot be identified or located. Problems with regard to this category of works arise when ‘users’ wish to exploit these orphan works beyond the scope of existing copyright exceptions. For those forms of exploitation the general rule of a prior consent of (all) the copyright (and neighbouring right) holders prevails. This article will describe and critically assess the recently released draft proposal for a so-called ‘European orphan works Directive’ and the impact assessment study preceding this draft. This article will investigate the place of this draft within the existing European copyright <em>acquis</em> and formulate some ideas for improvement or balanced implementation of this future piece of European legislation. </section>

The Recasting of Copyright &amp; Related Rights for the Knowledge Economy

Study carried out by the Institute for Information Law for the European Commission (DG Internal Market). Chapters 1 and 2 describe and examine the existing 'acquis communautaire' in the field of copyright and related (neighbouring) rights, with special focus on inconsistencies and unclarities. Chapters 3-6 deal with distinct issues that were identified a priori by the European Commission as meriting special attention: possible extension of the term of protection of phonograms (Chapter 3), possible alignment of the term of protection of co-written musical works (Chapter 4), the problems connected to multiple copyright ownership, including the issue of 'orphan works' (Chapter 5), and copyright awareness among consumers (Chapter 6). Chapter 7 provides an overall assessment of the benefits and drawbacks of the fifteen years of harmonisation of copyright and related rights in the EU and dwells on regulatory alternatives.

Factors Contributing to Orphan Works Vis-À-Vis a Viable Solution

The purpose of this dissertation is to characterize the status of Orphan Works in the digital Era and to recommend possible solutions. Firstly, I would discuss the Eldred v. Ashcroft with an aim to comprehend why copyright term has always been extended as such extension is contributing towards accumulation of Orphan Works. In the next chapter, I discuss The Shawn Bentley Orphan Works Legislation and try to analyze if searching the authors are worth blocking the knowledge. The current complexity of Copyright Law does little to inhibit the growth of infringing behavioral patterns to Orphan Works, henceforth, is Google Book a feasible solution? In my third chapter I attempt to problematize the Google Books Settlement and discuss its attributes. After discussing the aforementioned, I draw the conclusion that it would be in Congress’s best interest to pass the Orphan Work Legislation if Google Books settlement is a failure. If not, treatment of Orphan Works in other parts of the world can be used by US as an example (more of a risk analysis measure) and incorporate them in the Copyright Act.

Collective solutions for cultural collections online: Search and select!

In the digital era cultural institutions, such as libraries, museums and archives, face new opportunities, but also new challenges. While digital technologies enable these institutions to preserve and disseminate their collections on a wider scale, copyright creates a “bottleneck” which is hard to clear. Cultural institutions in general do not dispose of sufficient know-how or budget to tackle these issues. Sometimes the law creates more than just a bottleneck: in the case of orphan works, new customs will have to be backed by legal changes in order to legitimize online use of copyrighted works. Otherwise these acts will simply remain illegal. In their search for functional, yet affordable solutions, cultural organisations often refer to “collective licences”. But what does this notion of ‘collective licence’ exactly entail? What kind of collective mechanisms exist in the realm of copyright and what is the type of collective solution cultural organizations could use?

Inheriting culture: what challenges for the law?

This book brings together contributions by well-known copyright scholars, as well as cultural heritage specialists, and is aimed at addressing the topical issue of how to improve preservation and access to cultural heritage, especially in the light of the opportunities offered by digitisation. Indeed, thanks to technological developments, the dream of building a modern library of Alexandria has never been as close to reality as it is nowadays. The underlying idea of the book is that of creating a global online repository (not a mere register), which would allow access to works both in copyright and out of copyright. From this, it is apparent that copyright law is to play a major role in determining the fate of such a project. As far as preservation of cultural heritage is concerned, a discussion on how to address the problem of orphan works is certainly needed. The British Library estimates that 40...