Copyright Office reports on orphaned works
The Copyright Office has released its report on so-called orphaned works, which was commissioned last year by Senators Hatch and Leahy. See prior post on the public comment process. The report concludes that:
1. "The orphan works problem is real.2. The orphan works problem is elusive to quantify and describe comprehensively.
3. Some orphan works situations may be addressed by existing copyright law, but many are not.
4. Legislation is necessary to provide a meaningful solution to the orphan works problem as we know it today."
The report recommends changes to the Copyright Act's remedies section in the situation where the user performed a "good faith, reasonably diligent search" to try to locate the copyright owner and gave attribution to the source, where possible. See text of proposed legislation, Download file.
In this situation, remedies would be limited to "reasonable compensation" for the use -- no statutory damages. If the use was not for commercial advantange and if the use was stopped upon receiving notice of the copyright claim, no monetary damages would accrue.
In determining "reasonable compensation" the report references the case of Davis v. The Gap, Download file,noting:
"As that decision makes clear, reasonable compensation would equal what a reasonable willing buyer and a reasonable willing seller in the positions of the owner and user would have agreed to at the time the use commenced, based predominantly by reference to evidence of comparable marketplace transactions."
"As the Davis case suggests, the burden is on the copyright owner to demonstrate that his work had fair market value, and such assertion cannot be based on 'undue speculation.'"
No injunctive relief would be permitted if the reuse created a new derivative work with a "significant amount" of the user's new expression.
This proposal seems like a reasonable step to create some flexibility in the system, in light of the confluence of an extended copyright term with no formalities to maintain copyright interests and the fact that copyrights are regularly implicated through today's digital uses.
