Tulane-University-Law-School

Our Work at Tulane University

The Durationator® Copyright Experiment

Dr Elizabeth Townsend Gard has been leading the Durationator® Copyright Experiment at Tulane University Law School for six years, aiming to develop software that identifies the copyright status of various works—such as poems, books, photographs, and films—across different jurisdictions and time periods The project tackles the challenging question of whether a work is under copyright or in the public domain, facing obstacles like orphan works, complex laws, and elusive information Throughout this journey, students from the orphan work course have actively contributed as researchers, engaging in both classroom experiments and real-world inquiries to determine the copyright status of specific works.

Paul Courant’s comments really rang true for us He explained the problem with orphan works (and, we might add, determining the copyright status of any work):

One thing we have learned since 2006 is that establishing whether a work is an orphan work is difficult and costly, especially without federal

13 Jill H and Avram A Glazer Professor in Social Entrepreneurship

Associate Professor of Law and Co-Director of the Tulane Center for IP Law and Culture, as well as Co-Inventor and Director of the Durationator® Copyright Experiment at Tulane University Law School, emphasizes the challenges of identifying orphan works Establishing a work's orphan status requires proving a negative—that no rights holder can be identified Despite thorough research efforts, there may always be additional avenues to explore, potentially leading to rights holders who are distant from the work's creation and may be unaware of their rights.

Our experiment has highlighted the importance of having clear and achievable requirements, as many aspects of current copyright law are often unclear or ambiguous While the 1976 Copyright Act was well-structured, recent amendments have introduced complexities that are challenging to implement and comprehend We are worried that proposed solutions may be overly complicated, impractical, or biased towards specific users In our Reply Comment, we emphasize focusing on the works themselves rather than the users, and we urge your office to consider this perspective in any final rulemaking.

Pre-1972 Sound Recordings

The Tulane University Law School's Copyright Class of 2011, guided by Dr Townsend Gard, produced a Reply Comment addressing the pre-1972 sound recordings call for comments This collaborative exercise fostered learning and research, allowing students and faculty to understand diverse perspectives and reach a consensus on their recommendations Building on this experience, an advanced course has been established to focus specifically on crafting Reply briefs for Orphan Works.

Professor Glynn Lunney

Professor Townsend Gard initially focused on the narrow topic of duration in copyright law, her area of expertise However, after discussions with her colleague Glynn Lunney, they expanded their focus to include remedies, leading them to co-create and teach a comprehensive course on Copyright and Orphan Works for advanced students From the outset, it became clear that the subject matter encompassed a much broader range of issues beyond just duration and remedies, with Professor Lunney facilitating both the initial and concluding discussions of the course.

The 2008 legislation served as a significant focus for our final exercise, enhanced by his extensive expertise in copyright, trademark, and patent law, as well as his understanding of statute of limitations and civil procedure, which enriched our discussions and contributed to the quality of our final outcome.

Greg Stein

Greg Stein, a dedicated 3L student, has extensively explored the issue of orphan works through his law journal comment, a research paper, and a submission to the Copyright Office His passion and expertise in this area present a valuable opportunity for further engagement and discussion.

14 2013 Comments, supra note 3 (scroll down to Document 89; follow link to “Courant, Paul”)

Gregory Scott Stein's expertise significantly contributed to our understanding of key issues in the Reply Brief, where he served as Editor in Chief and assisted in teaching the class His knowledge was instrumental in shaping the course and identifying critical topics for our brief, reinforcing our confidence in pursuing a Reply Comment.

The Law Students

This brief showcases the intellectual vigor and creativity of Tulane University Law School students, each contributing unique perspectives and expertise With backgrounds ranging from WTO specialization to library representation, a Ph.D in Computer Science, and experience as in-house counsel and museum employees, their diverse knowledge enriched our discussions Students collaborated effectively, dedicating countless hours to their assigned topics, driven by joy and purpose Their hard work aims to provide valuable resources and information, reflecting their commitment to excellence.

Our Methodology

Summary

We acknowledge the concerns raised in the ninety-one Comments and aim to provide valuable information to further the discussion on orphan works Our class believes in enhancing current legal solutions rather than developing a new copyright system, as many rights holders and users may not be aware of existing resources Unfortunately, many Comments overlook these existing mechanisms, while others propose new registries without thoroughly examining the current system's functionality.

21 Google Books, G OOGLE , http://www books.google.com/books (last visited Mar 4, 2013)

22 H ATHI T RUST D IGITAL L IBRARY , http://www.hathitrust.org (last visited Mar 4, 2013)

23 E UROPEANA , http://www.europeana.eu/portal/ (last visited Mar 4, 2013)

After extensive discussions, the class concluded that it would be more beneficial to highlight existing elements of the 1976 Copyright Act that could address the challenges posed by orphan works Part II.C of the article explores these solutions, emphasizing how their effective implementation could mitigate some of the issues related to orphan works under the current copyright framework.

Our Analysis of Comments

Rights Holders

In our analysis, we prioritized the perspectives of key organizations in the music and film industries, such as ASCAP, BMI, the RIAA, the MPAA, and SAG-AFTRA, while acknowledging the valuable input from various rights holders and content creators By concentrating on these major players, we aimed to effectively capture and address the core arguments presented in the broader comments Notably, we found that there is no significant issue concerning orphan works.

Since 1972, major labels have consistently registered and tracked copyright ownership information for sound recordings, effectively mitigating the orphan works problem that can arise in other categories Additionally, searchable databases for sound recordings have been extensive and reliable since the 1970s, thanks to advancements in search capabilities and processes associated with copyright management.

The MPAA is optimistic that advancements in online records and voluntary registries will reduce the number of works classified as "orphan" over time To assess this, they have requested the Copyright Office to conduct a study on any remaining orphan works.

Similarly, ASCAP and BMI do not think there is a need for orphan work legislation aimed at musical works 29 Together with SESAC, these organizations

25 Written by Bri Whetstone, 3L, Tulane University Law School

26 2013 Comments, supra note 3 (scroll down to Document 79; follow link to “Recording Industry

28 Id (scroll down to Document 67; follow link to “Motion Picture Industry Association of America (MPAA)”)

ASCAP and BMI represent 99% of registered works with the Copyright Office and many unregistered ones, making it highly likely for users to find rights holders through their databases Additionally, prospective users of musical works for cinematic projects can access clearance information for sync licenses via organizations like the Harry Fox Agency These licensing bodies maintain current contact information for rights holders in their publicly accessible databases, covering nearly all copyrighted musical works.

SAG-AFTRA emphasizes that prospective users can easily reach out to rights holders by utilizing their publicly accessible database of collective bargaining agreements or by contacting their office directly Therefore, conducting this search should be an essential part of a user's due diligence.

The RIAA advocates for a detailed list of requirements for diligent searches that differ across industries While it supports the creation of voluntary guidelines to shape the diligent search standard rather than enforcing strict rules, it emphasizes that the Copyright Office should spearhead the development of these guidelines to ensure they are effectively constructed for each sector.

Since 2008, the digital landscape of online media has evolved significantly, offering more services for users to locate copyright owners Technologies like audio fingerprinting software are now utilized to identify sound recording owners, and various independent databases provide historical film information to assist in finding the correct copyright holders Organizations such as the RIAA, ASCAP/BMI, and the MPAA advocate for the inclusion of these resources in any diligent search standard for copyright ownership.

Rights holders consistently contend that orphan works legislation is an inappropriate avenue for tackling the challenges posed by mass digitization They express concerns that mass digitizers may exploit the "orphan works" exception, ultimately harming the interests of copyright owners.

The RIAA believes that mass digitization is not an orphan works problem because many of the authors in a digital catalog can be readily identified 39 They worry that users

34 Id (scroll down to Document 82; follow link to “Screen Actors Guild- American Federation of

Television and Radio Artists (SAG-AFTRA)”)

35 Id (scroll down to Document 79; follow link to “Recording Industry Association of America (RIAA)”)

For comprehensive insights, refer to Documents 9, 67, and 79, which provide links to key organizations including the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc (BMI), the Motion Picture Industry Association of America (MPAA), and the Recording Industry Association of America (RIAA).

The Recording Industry Association of America (RIAA) intends to utilize orphan works legislation to ease the challenges of locating copyright owners and obtaining permissions However, it maintains that only entities reproducing copyrighted works in large quantities should be exempt from orphan works requirements, while those using individual works must comply Similarly, the Motion Picture Association of America (MPAA) and ASCAP/BMI argue that the public policy implications of mass digitization differ from those related to orphan works, and they oppose exceptions for mass digitizers based on the costs and time involved in contacting copyright owners SAG-AFTRA also expresses concern that such exceptions could adversely affect its members’ financial and contractual rights While texts and photographs are typically used for educational or preservation purposes, music and audiovisual works have a more significant commercial market, highlighting that copyright "owners" are not the only stakeholders impacted by the use of orphan works.

SAG-AFTRA highlights that the 2008 legislation primarily focused on the remedies available to copyright owners against potential users, neglecting to address the contractual rights performers may have when a copyright owner is untraceable While copyright owners can pursue compensation for unauthorized use, performers are left without recourse regarding their rights.

“could ignore the economic damages to an author, or anyone, who held an enforceable contractual right to compensation from a missing owner.” 47 Even if an owner becomes

Even if a small label or production company goes out of business, the author or artist may still retain rights to their work, including use-based royalties According to SAG-AFTRA, these artists often have termination rights and can be located after the transfer date, reducing the likelihood of their work being truly "orphaned." When a potential user contacts an artist with termination rights, that artist holds the authority to license or restrict the use of their work in the absence of a copyright owner Additionally, collective bargaining agreements grant recording artists and actors the right to approve or deny the use of their works, which can be overlooked when considering the use of an "orphaned" work.

For more information, refer to Documents 9 and 67, which provide links to the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc (BMI), as well as the Motion Picture Industry Association of America (MPAA).

43 Id (scroll down to Document 67; follow link to “Motion Picture Industry Association of America (MPAA)”)

44 Id (scroll down to Document 82; follow link to “Screen Actors Guild- American Federation of

Television and Radio Artists (SAG-AFTRA)”)

SAG-AFTRA supports a limited orphan works system aimed at historical archiving, cultural preservation, and other altruistic purposes, but firmly believes that sound recordings should be completely excluded from this system.

The RIAA endorses an ITU database that mandates users to specify the work they wish to utilize along with their contact details, while detailed information regarding the usage of the work is not necessary.

Users

The Copyright Office's original orphan works report identified four user categories impacted by the orphan works issue: large scale access users, subsequent users, enthusiast users, and private users A review of ninety-one comments from 2013, compared to over 700 from 2005, reveals that these categorizations complicate the orphan works discourse by masking the evolving interests of the involved groups Additionally, the underlying concerns expressed in the 2013 comments left many stakeholders apprehensive about their influence on future orphan works legislation.

54 Id (scroll down to Document 79; follow link to “Recording Industry Association of America (RIAA)”)

56 Id (scroll down to Document 67; follow link to “Motion Picture Industry Association of America (MPAA)”)

58 Id (scroll down to Document 9; follow link to “American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc (BMI)”)

60 Written by Morgan Embleton, 2L, Tulane University Law School; Dan Collier, 3L, Tulane University Law School

61 See U.S C OPYRIGHT O FFICE , R EPORT ON O RPHAN W ORKS , (Jan 2006), 36-39, 122-125, available at http://www.copyright.gov/orphan/orphan-report-full.pdf [hereinafter Orphan Works Report]

The rights holders mentioned in this section consist of influential groups, but it's important to note that other rights holders also submitted Comments, which are addressed in our Reply Comment This indicates that the label used may be misleading Numerous creators, such as writers adapting old short stories into new novels, songwriters reinterpreting classic compositions, film studios utilizing historical photographs, and actors developing one-person shows based on vintage radio plays, exemplify how individuals can simultaneously fit into multiple classifications This ongoing cultural exchange—building upon the work of those before us—highlights that we are all both creators and consumers of artistic works.

Our analysis commenced with keyword identification, utilizing third-party software to aggregate initial comments from 2005 After filtering out common English words, proper nouns, and terms related to orphan works comments, we identified the 87 most frequently used terms These key terms were organized into a tree graph, categorizing related words that often appeared together The clusters were then plotted on a two-dimensional field, where the size of each term indicated its overall frequency, the distance between terms represented their likelihood of co-occurrence in documents, and lines illustrated common term combinations Terms positioned closer to the center of the field were associated with the highest frequency of co-occurrence, while areas with higher line density highlighted the most prevalent conversational themes.

62 Provalis WordStat, available at http://provalisresearch.com/products/content-analysis-software (last visited Mar 3, 2013)

63 See app B.1, fig 4 Conjugations and many synonyms were aggregated, so that, e.g., “user” includes

“users” and “film” includes “movie.”

64 See app B.1, fig 5 “Clusters” of a single term were omitted, so not every word out of the 87 most common is shown

The 2005 initial comments on orphan works highlight key elements such as the roles of work owners, users, the public, and creators, along with issues related to registration and contacting rights holders Notably, these early discussions show a significant imbalance, with "owner" being the predominant term compared to "user." They also emphasize the importance of individual interests, including family photographs, computer games, and the experiences of students in educational institutions, while addressing the financial burdens of compliance and the influence of free internet culture.

In 2005, out of over 700 initial comments, only about 10% were submitted by official representatives of large organizations, while the remaining 90% came from individuals, reflecting private user interests These individual commenters were more inclined to discuss personal topics, such as family photographs, rather than organizational issues like those addressed by the RIAA This trend was noted in the Copyright Office's 2006 Orphan Works Report, which categorized the comments into four distinct groups.

We analyzed the main body of the Copyright Office’s 2006 report, responding to and discussing the initial comments, in a similar manner as the comments themselves 65

Because there were fewer words in the report, only 65 keywords were identified

Figure 2: 2006 U.S Copyright Office, Orphan Works Report

The distinctions between Figure 1 and Figure 2, including the terminology used—such as referring to a lawyer as an attorney, closely grouping monetary and injunctive relief, merging costs and fees, and designating a rights holder as the owner of a copyright—reflect the specific practices of the Copyright Office Notably, the term "user" has significantly expanded in prominence, overshadowing "owner," alongside the introduction of new terminology.

“enthusiast” and “private,” this reflects the fact that the Copyright Office is not itself a user group but devotes a great deal of space to discussing them b The Four Categories

In its 2006 report, the Copyright Office sought to place users in one of four groups:

Large scale access users (“LSAUs”) are comprised of academic or public institutions 66 who, wishing to digitize their vast, often donated, collections, are concerned

65 See app B.2, figs 6-7 Some statistics are omitted because there was only one document to analyze

66 See Orphan Works Report, supra note 58; c.f Orphan Works Initial Comments (In response to Notice of

Inquiry dated January 26, 2005), U.S C OPYRIGHT O FFICE , http://www.copyright.gov/orphan/comments/

Due to the unavailability of copyright information for certain parts of the collection, individual works may hold greater value to the overall project than their inclusion costs This situation raises concerns among users about the potential for copyright holders to seek injunctive relief or monetary compensation.

The Copyright Office recommends that users conduct a diligent search for copyright holders, attribute the work to the author when possible, and document every step of the process If a copyright holder later appears, users can demonstrate their reasonable search efforts, which may limit the remedies available to the copyright holder Consequently, users may remove the work without facing monetary penalties, or, if the work is transformative, they can continue using it after providing reasonable compensation.

In the 2013 Comments, numerous potential LSAUs expressed a desire to utilize mass digitization to enhance access to their collections The University of North Carolina Library advocates for digitization to promote access to unique materials, while the Council of University Librarians at the University of California highlights that new technologies can enable libraries to provide greater access However, the Council raised concerns about orphan works, stating that the necessity to digitize only selected items due to copyright uncertainties complicates the provenance of digital items, ultimately diminishing their context and usefulness for research and teaching.

Enthusiast users (EUs) are individuals deeply passionate about specific works or hobbies, often possessing expertise in their fields The Copyright Office notes that many works of interest to EUs are no longer commercially available, leading them to seek limited republishing rights or online sharing to connect with others who have similar interests Unlike typical copyright claimants, EUs prioritize access and community sharing over financial gain or legal remedies.

67 2005 Comments, supra note 62 (scroll down to Document OW0457; follow link to "Michael

Researchers face challenges in accessing and utilizing the knowledge contained in individual publications due to their physical nature Additionally, the presence of Orphan Works poses significant obstacles for research libraries and archives, preventing them from fully leveraging digital advancements to enhance the progress of science and the arts.

68 Orphan Works Report, supra note 58, at 38

72 See id (scroll down to Document 72; follow link to “North Carolina State University (NCSU)

Libraries aim to preserve books and enhance accessibility for individuals with disabilities They facilitate the identification and location of relevant literature, support advanced research related to books, and strive to maintain the cultural and scholarly record for future generations.

73 2013 Comments, supra note 3 (scroll down to Document 30; follow link to “Council of University Librarians at the University of California”)

The Copyright Office emphasizes the importance of preserving works while honoring copyright holders, suggesting that users would benefit from access to injunctive remedies and potential monetary compensation It advises that entities using copyrighted material, similar to Licensed Service Providers, must perform diligent searches and properly attribute the original authors Furthermore, those who publish information online may face obligations to remove content or provide reasonable compensation if the copyright holder reappears.

In 2013, various groups representing the EU submitted comments highlighting the importance of using orphan works for cultural enrichment The Future of Music Coalition recognized that access to creative expressions fosters cultural benefits and enables artists to innovate with existing works Additionally, the Dance Heritage Coalition pointed out that difficulties in negotiating permissions for preexisting materials often hinder new cultural production, primarily due to unclear copyright ownership information or unresponsive copyright holders.

Subsequent Users (SUs), as defined by the Copyright Office, are individuals who seek to incorporate existing works into their own creative expressions, often for educational purposes, such as using historical video footage or photographs Many SUs are apprehensive about utilizing these works due to the inability to locate copyright holders, fearing potential lawsuits and legal repercussions The Copyright Office has noted that the uses sought by SUs may exceed the bounds of fair use, leading to significant concerns about injunctive relief that could result in financial losses for users who have already invested in production and distribution.

77 Orphan Works Report, supra note 58, at 39 (“[M]ost of these users would likely comply with the wishes of the copyright owner if the rightful party could simply be identified.”)

80 2013 Comments, supra note 3 (scroll down to Document 44; follow link to “Future of Music Coalition”)

81 2013 Comments, supra note 3 (scroll down to Document 32; follow link to “Dance Heritage Coalition (DHC)”); see also 2013 Comments, supra note 3 (scroll down to Document 91; follow link to

Requirements for Obtaining Orphan Work Status

Orphan works are defined through two key perspectives: a conditional definition and a descriptive definition The descriptive definition clarifies the reasons a work is classified as orphaned, and it stands out as one of the few universally accepted points among all stakeholders involved.

The Library Copyright Alliance (LCA), which encompasses organizations such as the American Library Association (ALA), the Association of College and Research Libraries (ACRL), and the Association of Research Libraries (ARL), plays a crucial role in advocating for copyright policies that support libraries and their users.

109 See, e.g., id (scroll down to Document 86; follow link to “Software & Information Industry

The concept of "orphan works" refers to situations where the copyright owner cannot be identified or located by individuals seeking to use the work legally This issue has sparked significant debate regarding the eligibility of such works for special legal treatment Our class explored the orphan works dilemma from both user and owner perspectives, recognizing that all copyright owners are also potential users Interestingly, users and content owners often approach the issue by first determining which works qualify for orphan status, subsequently establishing requirements that inadvertently exclude many of those works from being utilized.

Content owners often resist labeling works as orphaned and tend to support stringent definitions of "diligent search" standards The Motion Picture Association of America (MPAA) has observed that the orphan works issue is less prevalent now than in 2008, primarily due to enhanced searchable databases created by industry organizations Additionally, photographers frequently describe the issue as "kidnapping," referring to the unauthorized use of their cherished works.

Parents often face the distressing issue of children who have been "kidnapped" or have wandered away from home While there is a consensus on the existence of an orphan work problem, the primary concern revolves around these "kidnapped orphans." Advocates are calling for legislation that addresses the intentional or unintentional removal of bylines, captions, or digital watermarks to protect the rights of creators.

Users of orphan works advocate for broader standards to expand the range of works classified as orphans Libraries acknowledge the orphan works issue and seek legislative or judicial solutions that clearly define these standards.

The term "diligent search" should be defined by courts on a case-by-case basis, considering the specific nature and diversity of copyrighted works This approach allows courts the discretion to reduce statutory damages without a strict requirement to define what constitutes a reasonably diligent search, leaving the determination to judicial interpretation.

Rather than permitting judges the discretion to decide eligibility, Congress has previously attempted to create a statutory, conditional definition of orphan work Under

111 Orphan Works Report, supra note 58

112 See 2013 Comments, supra note 3 (scroll down to Document 9, and 20; follow link to “American Society of Composers, Authors, and Publishers”, “Authors Guild”, respectively)

The Office should conduct a thorough study of the current landscape of orphan works If legislation remains a viable option after this analysis, it is essential that any proposed measures consider these findings when defining the term "reasonably diligent search."

114 See id (scroll down to Document 8; follow link to “American Photographic Artists”)

116 See id (scroll down to Document 61, follow link to “Library Copyright Alliance”)

118 Id the 2008 legislation, an unauthorized user of a copyrighted work is eligible for a limitation of remedies in a copyright infringement action if he or she:

To establish liability for infringement, it must be demonstrated by a preponderance of the evidence that prior to the commencement of the infringement, either the infringer, an individual acting on their behalf, or anyone jointly and severally responsible for the infringement was involved.

(I) performed and documented a qualifying search, in good faith, for the owner of the infringed copyright; and

(II) was unable to locate the owner of the infringed copyright;

(ii) before using the work, filed with the Register of Copyrights a Notice of Use under paragraph (3);

Attribution must be given to the copyright owner of the infringed material in a reasonable manner, provided that the owner can be identified with a reasonable degree of certainty based on the information gathered during the qualifying search.

(iv) included with the use of the infringing work a symbol or other notice of the use of the infringing work, in a manner prescribed by the

(v) asserts in the initial pleading to the civil action the right to claim such limitations;

(vi) consents to the jurisdiction of United States district court, or such court holds that the infringer is within the jurisdiction of the court; and

When making initial discovery disclosures as mandated by Rule 26 of the Federal Rules of Civil Procedure, it is essential to clearly outline the basis for claiming limitations This includes providing a thorough description and supporting documentation of the search conducted in accordance with paragraph (2)(A).

An alleged infringer may forfeit the limitation of remedies if, upon receiving notice of an infringement claim and having the chance to conduct a prompt and good faith investigation, they fail to act appropriately.

(i) fails to negotiate reasonable compensation in good faith with the owner of the infringed copyright; or

(ii) fails to render payment of reasonable compensation in a reasonably timely manner 120

Congress failed to enact this statutory definition, but we feel that the most important—and potentially troublesome to good and bad faith users—element was the

119 Orphan Works Act of 2008, HR 5889, 110th Cong § 514 (b)(1)(A) (2008)

120 Orphan Works Act of 2008, HR.5889, 110th Cong § 514 (b)(1)(B) (2008)

121 For further discussion of previous orphan works legislation, see infra app A i Diligent Search

Many of our class’ concerns over the direction of discussion in the 2013

The Orphan Works Act of 2008 emphasized the importance of diligent searching as a criterion for eligibility It proposed that a "fact-based" diligent search must be "reasonable and appropriate" based on the relevant circumstances, rather than outlining specific steps for searchers to follow This flexible approach was supported by many well-funded institutions that champion mass digitization efforts.

In 2013, numerous commenters advocated for a more objective definition of diligent search, proposing the inclusion of Copyright Office certification, third-party databases, and paid experts Our class discussions highlighted the widespread agreement on the necessity of some form of diligent search as reflected in the Initial Comments, examined the Copyright Office's role in this process, and explored the ongoing debate between fact-based and objective searching methodologies.

We ultimately concluded that the fact-based vs objective search debate represented a false dichotomy that masked the concerns of the silent majority of private users

Nevertheless, we believe that it is still possible to create an orphan works information network accessible to all parties a Broad Acceptance

More than half of the comments highlighted the importance of diligent search requirements for orphan works While some argued that no search can be truly sufficient, many emphasized its necessity Organizations such as ASCAP and BMI insist that users of orphan works must check their databases, as works with available licenses through collective licensing organizations should not be deemed orphaned Our class concluded that a certain level of diligent search requirement is inevitable, especially considering the legislative proposals from 2008.

122 Orphan Works Act of 2008, S 2913, 110 th Cong (2008)

124 See, e.g., 2013 Comments , supra note 3 (scroll down to Document 30; follow link to “Council of University Librarians at the University of California”)

The Photographs: A Case Study

After a month of reviewing ninety-one comments on orphan works, our class concluded that photographs serve as a valuable case study for understanding the complexities of this issue Notably, forty-two of the comments specifically referenced photographs, highlighting the significant concern within the photography community Photographers have historically been active advocates for legislative solutions addressing the challenges posed by orphan works.

As a class, we looked specifically at the issues surrounding photographs in 2013 and the

159 See id (scroll down to Document 70; follow link to “National Press Photographers Association”)

163 See id (scroll down to Document 7; follow link to “American Intellectual Property Law Association (AIPLA)”)

165 See id (scroll down to Document 86; follow link to “Software & Information Industry Association”)

167 Photographs section written by Dorian Thomas, 3L, Tulane University Law School; Morgan Embleton, 2L, Tulane University Law School; and Professor Elizabeth Townsend Gard

168 That would be 46% of the Comments

169 See infra app D.B concerns of photographers for both past and present photographs Photographic orphan works face several problematic issues These issues include:

 Inadequate identifying information on the work; 170

 The large volumes of photographic works created, both in the past and currently; 171

 The relative ease of creating photographic works, particularly in the digital age; 172

 The restoration process of decaying photographic works in the face of absent or unknown copyright holders; 173

 The donation of photographic works to various institutions from owners of the photographs who might not be the copyright holders; 174

 The deletion of metadata leading to the increased frequency of “kidnapped” orphan works; 175

 The ease of duplicating photographs in the digital age 176

 The desire to legally digitize old photographs; 177

 The cost of pursuing a claim of copyright infringement in relation to the value of the work; 178

 The ability and costs of users to search copyright registries for photographs; and

 The ability and costs of rights holders to register their photographs with the

Photographic works exemplify the challenges associated with orphan works, highlighting the complexities faced by creators The sheer volume of photographic content, coupled with the growing ease of its creation and distribution, makes these works particularly vulnerable to orphan work issues.

Libraries and museums encounter challenges related to the management of photographs, often serving as custodians for vast collections that frequently lack identifying details A notable example is the North Carolina Collection, which houses an impressive 1.8 million photographs alongside other cultural artifacts, highlighting the common issue faced by special collections in preserving and cataloging their visual heritage.

170 See 2013 Comments, supra note 3(scroll down to Document 77; follow link to “Professional

171 See id (scroll down to Document 77; follow link to “Professional Photographers of America”)

172 See id (scroll down to Document 77; follow link to “Professional Photographers of America”)

173 See Orphan Works Report, supra note 58

175 See 2013 Comments, supra note 3(scroll down to Document 8; follow link to “American Photographic Artists”)

176 See id (scroll down to Document 77; follow link to “Professional Photographers of America”)

Writers encounter significant challenges in protecting their work online, primarily due to the absence of identifying information and the high costs associated with pursuing copyright claims, as highlighted by the National Writers Union.

180 See id (scroll down to Documents 76, 77, and 78; follow links to “Picture Archive Council of America”

“Professional Photographers of America”,”Pro-Imaging”, respectively)

The North Carolina Collection aims to preserve and provide access to its unique cultural artifacts; however, the orphan works issue presents a legal barrier that hinders their ability to digitize and share these collections online.

Many historical materials were created by individuals whose names have been forgotten, while others are attributed to known creators whose current whereabouts or heirs are unknown Additionally, numerous works remain unpublished or lack a clear publishing history due to their obscure origins As a result, it is often challenging to determine whether these works are in the public domain.

Within the comments about photographs, we found the following themes and/or concerns a Identifying Information

The primary challenge with photographic and orphan works is the absence of identifying information about the creator This issue affects both historical photographs, like school pictures from the 1940s, and contemporary images shared on platforms such as Pinterest without clear authorship The key questions arise: how can we reconnect these orphaned works with their rightful owners, what legal framework should govern these unclaimed images, and what is the copyright duration for photographs when the author remains unidentified?

Although the Copyright Office provides a registration service, the majority of authors of photographic works fail to register their creations 184 The Professional

The Photographer’s Association reports that over 90% of professional photographers have not registered any of their works, raising significant concerns about the orphan works issue This statistic prompted us to explore underutilized areas of the system that could offer potential solutions to mitigate aspects of the orphan work problem.

The relative ease of creating a photographic work has led to an enormous amount of unidentifiable works High-yield professional photographers are capable of creating

183 The term of copyright under U.S law is measured from the date of death of the author of the work See

184 See 2013 Comments supra note 3 (scroll down to Document 77; follow link to “Professional

The rise of amateur photography has led to an unprecedented surge in the creation of over 20,000 works annually, with individuals capturing images at an astonishing rate Social media platforms like Facebook, Tumblr, Flickr, and Pinterest enable users to instantly upload and share their photographs, often without verifying their legal rights to do so This rapid sharing complicates ownership issues, especially as smart phones and apps like Instagram make it easier to create and disseminate images Consequently, these technological advancements have intensified the orphan works problem, increasing the number of potential orphan photographs that lack clear ownership.

The deterioration of older photographic works poses a significant challenge for both owners and photofinishers As individuals attempt to refurbish cherished family photographs, they often face difficulties in obtaining the necessary copyright licenses from the original authors, leading photofinishers to refuse reproduction for fear of infringement This situation results in owners being unable to preserve valuable memories while photofinishers miss out on potential business opportunities.

Donating photographs to archives, libraries, or museums raises significant orphan works challenges Many owners of culturally and historically significant photographs opt to donate these works to public institutions, which preserve and share them with the public However, donors often lack crucial information about the creators of these photographs and the legal status of the works, complicating the donation process.

Libraries and museums that accept donations often face challenges in negotiating usage licenses for these works Additionally, the digitization process aimed at preserving photographs complicates the determination of copyright status, as institutions are concerned about potential legal repercussions.

187 See id (scroll down to Document 70; follow link to “National Press Photographers Association”; scroll down to Document 78; follow link to “Pro-Imaging”)

188 See id (scroll down to Document 78; follow link to “Pro-Imaging”)

189 See id (scroll down to Document 70; follow link to “National Press Photographers Association”; scroll down to Document 78; follow link to “Pro-Imaging”)

190 See Orphan Works Report, supra note 58

195 See 2013 Comments, supra note 3 (scroll down to Document 90; follow link to “University of North Carolina-Chapel Hill”)

197 Id copyright infringement suit 198 This fear leaves a vast amount of works at risk to physical deterioration and limited accessibility to the public 199 e “Kidnapped” Orphans

Technological advancements have introduced significant challenges in the realm of orphan photographic works Orphan works often arise not from intentional neglect by their creators, but rather through the misuse of new technologies that enable the removal of identifying information According to the American Photographic Artists, these "kidnapped" photographs are frequently copied, shared, and published without any attribution, further disconnecting them from their original authors and copyright holders The expansive reach of the Internet exacerbates this issue, allowing these orphaned works to be distributed widely, outpacing the ability of individual creators or legal authorities to monitor and protect their rights.

When a kidnapped or orphaned work is claimed by its rightful author, complications arise, particularly concerning the Copyright Act's provisions for statutory damages and attorney fees for infringement These remedies require the author to register their work prior to initiating litigation, yet most photographers have not registered their works with the copyright office Consequently, many authors may miss out on these financial remedies, diminishing their motivation to pursue legal action against infringement Additionally, the high costs of litigation often exceed the value of the infringing use, further discouraging authors from taking legal steps to protect their rights.

Various comments proposed solutions for the photographic orphan works

The Picture Archive Council of America (PACA) submitted a Comment that outlined proposed solutions focusing on four key areas: diligent search, good faith, safe harbors, and additional considerations.

200 See id (scroll down to document 8; follow link to “American Photographic Artists”)

206 See 2013 Comments, supra note 3 (scroll down to Document 77; follow link to “Professional

207 See id (scroll down to Documents 76, 77, and 78; follow links to “Picture Archive Council of America”

“Professional Photographers of America”,”Pro-Imaging”, respectively)

Solutions under the Current Copyright Act

Section 412: A Limitation on Damages Already Exists

To address the orphan works issue, the initial step involves removing statutory damages and attorney's fees for good faith users, which is already incorporated in the Copyright system under § 412 for certain works By eliminating these two remedies, the risk of copyright infringement for utilizing an orphan work without a license diminishes significantly Since the remedies outlined in § 412 depend on the registration of the copyrighted work, users conducting a "diligent" search should first determine if the work has been registered.

The Berne Convention, and our implementation in the Berne Convention

The Implementation Act of 1988 and the Uruguay Round Agreements Act establish a streamlined copyright system in the U.S., eliminating the need for formalities to secure copyright However, to qualify for statutory damages and attorney's fees, registration is necessary for both domestic and foreign works, typically within three months of publication or before any infringement occurs for unpublished works.

230 Written by Dr Elizabeth Townsend Gard; Dan Collier, 3L, Tulane University Law School; and R Austin Blakeslee, 3L, Tulane University Law School

231 See Berne Convention for the Protection of Literary and Artistic Works, supra note , art 5(2)

[hereinafter Berne];Berne Implemenation Act of 1988, Pub L No 100-568, 102 Stat 2853 (codified at 17 U.S.C § 101 note (Effective Date of 1988 Amendment)); 17 U.S.C § 104A (West 2012) (codified version of URAA)

A recent comment from the Professional Photographers of America revealed that 90% of photographers fail to register their works with the Copyright Office This statistic has sparked discussions among various photography organizations advocating for a more effective registry system Alarmingly, another statement from the same group indicated that the actual numbers might be even more concerning.

Only about 1% of photographers regularly register their copyrights, notwithstanding the Copyright Office’s group registration rules Indeed,

84% of professional photographers have never registered even a single image with the Copyright Office The average photographer creates over

20,000 images a year—that is simply too many photographs for a struggling small business to take the time to assemble and deposit 234

In contrast, in the music industry, we then noted that the RIAA suggested no post-

The existence of sound recording orphans from 1972 can be attributed to the registration system in place Major record companies typically register sound recordings released or distributed after this year, ensuring that commercially released versions clearly identify the copyright owner As a result, encountering orphan works within this category is quite rare.

The Society of American Archivists (SAA) highlighted that a significant portion of their works remained unregistered Interestingly, SAA acknowledged the importance of registration but consciously chose to dismiss its potential impact.

Under 17 USC § 412, archival repositories are already immune from statutory damages and attorney’s fees for the infringement of unregistered unpublished works, and in most cases, the actual damages that would accrue to a copyright owner are small Although they welcome the safety that § 412 affords, they are also reluctant to base ongoing practice on technicalities, preferring instead to operate archives as places of integrity 237

Section 412 plays a crucial role in addressing the orphan work issue, as our class recognizes that proper registration can significantly mitigate liability concerns for users of unregistered orphan works We believe the Copyright Office should actively promote the benefits of § 412 as a valuable resource This section could be particularly beneficial for two key areas: the use of photographs and the management of unpublished and unregistered archival works.

233 See, e.g., 2013 Comments, supra note 3 (scroll down to Document 77; follow link to “Professional Photographers of America”)

234 Id (scroll down to Document 77; follow link to “Professional Photographers of America”)

235 Id (scroll down to Document 79; follow link to Recording Industry Association of America (RIAA)”)

236 Id (scroll down to Document 85; follow link to “Society of American Archivists”)

Despite the ease and low cost of registering their works, many photographers choose not to do so, which can hinder their ability to protect their rights According to Section 412, registering a work provides essential incentives for photographers For instance, if an unpublished and unregistered photograph is posted online without authorization, the copyright holder may feel aggrieved but will face challenges in seeking remedies Although they can register the work and pursue legal action for infringement, the unauthorized posting does not entitle them to statutory damages or attorney’s fees Instead, their options are limited to injunctive relief, actual damages, or profits, which can be difficult to prove.

Old photographs and new images shared on social media platforms like Instagram and Facebook are often not registered for copyright, which can limit the legal remedies available to copyright holders Without proactive registration, creators miss out on significant benefits such as statutory damages and attorney's fees To ensure better control and the ability to litigate effectively, professionals and serious creators should prioritize registering their works.

Section 412 serves as a valuable tool for addressing orphan works, which often lack registration If an unregistered letter from an archive is used, the infringer is not liable for statutory damages or attorney’s fees, leaving only actual damages and injunctions as potential remedies However, actual damages can be challenging to quantify, and seeking an injunction necessitates court involvement and work registration, making it less appealing without additional remedies Furthermore, alternatives to injunctions may exist under § 512(c) and even through an ITU.

Unregistered unpublished works, such as materials in archives or personal family photo albums, do not qualify for attorney's fees or statutory damages, including those for willful infringement, if posted online In contrast, registered works provide clear ownership and authorship information, including the copyright holder's contact details and the work's creation date, ensuring that it is not considered orphaned.

Section 412 of the copyright law applies to both foreign and domestic works, as highlighted by William Patry, who notes that the phrase "any infringement" indicates this broad scope While foreign works do not require registration to initiate an infringement lawsuit, obtaining statutory damages and attorney's fees necessitates registration Patry emphasizes that Congress has clarified the application of § 412 on three occasions, confirming its relevance to both types of works.

238 See U.S C OPYRIGHT O FFICE , C IRCULAR 40: C OPYRIGHT R EGISTRATION FOR W ORKS OF THE V ISUAL

239 See 17 U.S.C § 501 et seq (West 2013) (providing remedies for copyright infringement)

240 Willful damages are included under statutory damages See 17 U.S.C § 504(c)(2) (West 2013)

In his analysis, William F Patry emphasizes that the provisions for statutory damages and attorneys' fees upon timely registration of copyright claims remain intact, even for foreign works He highlights that during the BCIA discussions, Congress intentionally chose not to alter these existing legal protections Furthermore, Patry clarifies that while the 1976 Copyright Act removed certain formalities, Section 412 was specifically differentiated in these discussions, underscoring its significance in copyright law.

In hearings on the bills, the Register of Copyrights acknowledged that Section

Section 412 mandates registration for all works, a requirement that continues to hold true today There are no international agreements that contradict this regulation, ensuring that it aligns with the United States' international obligations To date, no scholars have argued against this interpretation.

Finally, Congress returned to the question of § 412 with the URAA, where, again, it decided that § 412 applies to foreign works, in the form of Section 104A(d)(4) 244

David Nimmer emphasizes that § 412 of the copyright law is applicable to both foreign and domestic works, highlighting that registration is essential not only for securing statutory damages and attorney’s fees but also for initiating a lawsuit, regardless of the work's country of origin He points out that this requirement underscores the absence of formalities necessary for obtaining copyright protection.

Injunctive Relief

There is a lack of consensus on limiting injunctive relief, with minimal support compared to the significant backing for reducing statutory damages Legislation that restricts injunctive relief could lead the United States to violate international intellectual property treaties such as Berne and TRIPs, especially as efforts to comply with international IP law are underway Consequently, our class could not reach a unanimous agreement with those advocating for orphan works legislation that explicitly limits injunctive relief.

Organizations such as the International Documentary Association and the Software and Information Industry Association advocate for limiting injunctive relief in orphan works legislation They contend that users aiming to create derivative works from orphaned materials face significant risks if a rights holder unexpectedly re-emerges, potentially undermining the entire value of their creations This concern is especially pronounced for projects like films, which often involve substantial investment and resources.

256 Written by Dan Collier, 3L, Tulane University Law School; and Prof Glynn Lunney, Tulane University Law School

257 See generally Berne, supra note 231; Agreement on Trade-Related Aspects of Intellectual Property Rights, art 44 §1 [hereinafter TRIPs]

258 Distinguished from, e.g., reducing the availability of injunctive relief through fair use

The document references various organizations and individuals involved in the film industry, including the International Documentary Association, Film Independent, and Kartemquin Educational Films, among others Key figures mentioned are Gilda Brasch, Kelly Duane de la Vega, and Roberto Hernandez, highlighting the collaborative nature of independent filmmaking and the support from media arts organizations.

260 Id (scroll down to Document 86; follow link to “Software & Information Industry Association”)

261 Id (scroll down to Documents 7 and 55; follow links to “International Documentary Association, Film

The article highlights key contributors and organizations in the independent filmmaking sector, including the Independent Filmmaker Project, Kartemquin Educational Films, and the National Alliance for Media Arts and Culture Notable individuals such as Gilda Brasch, Kelly Duane de la Vega of Loteria Films, Katie Galloway, Roberto Hernandez, Karen Olson from Sacramento Video Industry Professionals, Marjan Safinia of Merge Media, and Geoffrey Smith of Eye Line Films are also mentioned, alongside the American Intellectual Property Law Association (AIPLA).

262 Id (scroll down to Documents 9 and 55; follow links to “International Documentary Association, Film

The Independent Filmmaker Project collaborates with various organizations and professionals in the film industry, including Kartemquin Educational Films, the National Alliance for Media Arts and Culture, and notable figures such as Gilda Brasch, Kelly Duane de la Vega of Loteria Films, Katie Galloway, Roberto Hernandez, Karen Olson from Sacramento Video Industry Professionals, Marjan Safinia of Merge Media, and Geoffrey Smith of Eye Line Films, alongside the American Society of Composers, Authors and Publishers.

Organizations such as ASCAP and BMI emphasize that initial capital investments are difficult to reallocate, and if not made public, they yield no returns However, this perspective is countered by comments from groups like the American Association of Independent Music, the NMPA, and Harry Fox, which argue that rights holders must have access to injunctive relief to protect their copyrights effectively and affordably.

Other parties, including the Association of American Publishers 267 and the

The American Society of Illustrators emphasized that any legislation regarding orphan works must align with international intellectual property law, specifically the Berne and TRIPs Conventions These conventions stipulate that courts should have the authority to impose injunctive relief for copyright infringement, irrespective of whether the work is classified as orphaned Although the provisions appear to focus on border seizures, there is no legal precedent that restricts the requirement for injunctive relief solely to that scenario Instead, as demonstrated in the case of eBay v MercExchange L.L.C., it may be possible to apply damages in lieu of an injunction.

In eBay, the Court overturned the conventional rule that a patent holder automatically qualifies for a permanent injunction simply by proving patent infringement, unless exceptional circumstances are present Instead, the Court established that a patent plaintiff must meet the traditional four-part equitable test to be eligible for injunctive relief.

To obtain a permanent injunction in copyright cases, a plaintiff must demonstrate four key elements: (1) the existence of an irreparable injury; (2) the inadequacy of legal remedies, such as monetary damages, to address that injury; (3) a favorable balance of hardships between the plaintiff and defendant that justifies an equitable remedy; and (4) that granting the injunction would not negatively impact the public interest The Court's reasoning in the eBay case, although focused on patent law, is applicable to copyright cases and suggests that injunctive relief cannot be granted solely based on a finding of copyright infringement; instead, plaintiffs must meet this comprehensive four-part equity test.

264 Id (scroll down to Document 3; follow link to “American Association of Independent Music (A2IM)”)

265 Id (scroll down to Document 69; follow link to “National Music Publishers’ Association (NMPA) and

The Harry Fox Agency (HFA)”)

266 Id (scroll down to Documents 2 and 3; follow links to “American Association of Independent Music

(A2IM)” and “Abraham, Daniel”, respectively)

267 Id (scroll down to Document 16; follow link to “Association of American Publishers”)

268 Id (scroll down to Document 10; follow link to “American Society of Illustrators Parternship (ASIP)”)

269 See id (scroll down to Documents 2 and 16; follow links to “Association of American Publishers” and

270 See Berne, supra note 231, art 16, para 1; TRIPs art 44, para 1; see also TRIPs art 46, 50

271 See, e.g., TRIPs art 44, para 1 (“inter alia to prevent the entry into the channels of commerce in their jurisdiction of imported goods”)

In certain copyright cases, courts may have the discretion to deny injunctive relief and instead limit successful plaintiffs to seeking damages The Supreme Court has indicated this possibility, particularly in cases involving complex fair use issues, as highlighted in Campbell v Acuff-Rose Music, Inc.

In cases involving parodies and critical works, the fair use inquiry necessitates careful judgment regarding permissible borrowing Courts should consider that the objectives of copyright law—aimed at encouraging the creation and dissemination of enriching content—may not always be best achieved by automatically granting injunctive relief when parodists exceed fair use limits.

While written specifically in terms of the “parodist” then before the Court, this language may provide a basis for limiting injunctive relief in close fair use cases more generally

Denying injunctive relief can create opportunities for the use of orphan works and mass digitization projects by alleviating the threat of injunctions Even without injunctive relief, defendants with a reasonable but ultimately unsuccessful fair use defense remain liable for damages, including their own profits from the infringement and statutory damages By restricting relief to damages, some productive uses of orphan works and mass digitization initiatives may still be possible, as it reduces the risk of hold-up associated with injunctions For instance, if defendants lose their fair use argument on appeal in the Authors Guild case, this approach could facilitate continued access to valuable resources.

In the HathiTrust case, a court must apply the four-part test from eBay before granting injunctive relief, which could potentially halt the entire project unless the defendants meet the plaintiff's demands If injunctive relief is denied, the plaintiff may only pursue damages, thereby reducing the risk of hold-up Additionally, for works not registered at the project's outset, Section 412 prevents the recovery of statutory damages Given the defendants' nonprofit status, the plaintiff's compensation under Section 504(a) may be limited to actual damages that can be proven as resulting from the infringement.

Despite the uncertainties involved, adopting this approach could alleviate significant obstacles to the effective utilization of orphans and mass digitization initiatives However, the presence of statutory damages for works registered prior to their use remains a considerable hindrance to maximizing their productive application.

Orphan works legislation remains a contentious issue, particularly concerning its compliance with international law While U.S law, specifically 19 U.S.C § 3512(a)(1), allows for potential violations of TRIPs, recent developments, including the introduction of 17 U.S.C § 104A to the Copyright Act and the Supreme Court's decision in Golan v Holder, indicate a clear intention among U.S lawmakers to align with Berne and TRIPs agreements Despite our concerns about the challenges faced by creators of derivative works due to the threat of orphan injunctions, our group could not reach a consensus on whether to include limitations on injunctive relief in the current orphan works legislation.

Section 512(c): Current Economical Solutions to Copyright Infringement

Section 512(c) establishes a safe harbor for Internet Service Providers, protecting them from liability for users' copyright infringement This framework offers a cost-effective way for copyright holders to address unauthorized use of their works while also providing an affordable mechanism for users to contest infringement claims.

Within the orphan work setting, § 512(c) can be used to deal with issues of

In the digital landscape, "kidnapped orphans" refer to copyrighted works that have had their ownership information removed The notice-and-take down provisions under § 512 offer a cost-effective alternative to litigation, allowing for the removal of unauthorized uses without the necessity of valid registration, although encouraging registration is advisable This framework also provides a means for accused users to respond to claims, fostering a more balanced approach to copyright enforcement.

A user may unlawfully post a photograph on Pinterest without the copyright holder's permission, prompting the copyright holder to request its removal through an automated system Following this, the user has the chance to present evidence for reinstating the photograph If the image is restored, the copyright holder retains the option to pursue legal action regarding the infringement.

Orphans often encounter challenges in the digital realm, making § 512(c) a potential solution and a foundation for developing a system that addresses the use of copyrighted materials for both creators and users.

277 It voids any condition of TRIPs inconsistent with U.S law

279 Written by Professor Elizabeth Townsend Gard

281 Elizabeth Townsend Gard & Bri Whetstone, Copyright and Social Media: A Preliminary Case Study of

Criminal Penalties for “Kidnapped Orphans:” 17 U.S.C § 506

A problem raised in several of the initial comments was that of so-called

The issue of "kidnapped orphans" refers to copyrighted works, often photographs, that have had their copyright information removed, making it difficult to identify their owners The American Photographic Artists (APA) expressed concern that proposed legislation would leave these owners without remedies, as infringers could avoid statutory damages by claiming they conducted a "reasonably diligent search" for the original creators The APA argued that this would unfairly disadvantage photographers who registered their works properly and were easily locatable, emphasizing the need for any new legislation to address this critical issue.

Under the current Copyright Act, copyright owners have remedies for "kidnapped orphans." Section 506 outlines criminal penalties for willful infringement, including fines for the fraudulent removal of copyright notices as specified in Section 506(d) Additionally, Section 506(e) imposes penalties for fraudulent copyright notices and falsified registration applications Importantly, Section 405(c) clarifies that the unauthorized removal or destruction of a copyright notice does not affect the copyright's validity While photographic works may be particularly susceptible to being "kidnapped," copyright owners still have legal recourse under existing laws.

285 By Claire Carville, 3L Tulane University Law School; Professor Elizabeth Townsend Gard; Austin Blakeslee, 3L, Tulane University Law School; and Dan Collier, 3L, Tulane University Law School

286 2013 Comments, supra note 3 (scroll down to Documents 8, 12, 31, 38, 57; follow links to “American Photographic Artists (APA);” “American Society of Media Photographers (ASMP);” “Croxton, Matthew David;” “Dufresne, Walter;” “Kane, Chris”, respectively)

287 Id (scroll down to Document 8; follow link to “American Photographic Artists (APA)”)

The American Society of Media Photographers (ASMP) has proposed extending the right of attribution to all photographic works, regardless of their context, as a solution to existing issues in the field.

Individuals can be held liable for Fraudulent Copyright Notice if they knowingly place a false copyright notice on an article with fraudulent intent, or if they publicly distribute or import articles with such false notices Violators may face fines of up to $2,500.

Id § 506(c) not give rise to a private cause of action, 297 a copyright owner would still be able to report a violation to a district attorney to initiate a lawsuit

It should be noted, though, that according to the Carnegie Mellon University Libraries, the U.S Senate and Copyright Office have recently discussed amending § 506

A coalition of 298 Congress members, led by Senator Ron Wyden of Oregon and Representative Darrell Issa of California, is advocating for copyright reform Their proposals aim to impose penalties for false representations, enhance and clarify fair use, and ensure due process in intellectual property seizures While these initiatives represent a significant call to action for the upcoming year, the specific details of any forthcoming legislation remain uncertain.

Copyright Information Management

Another way to look at the “kidnapped orphan” problem is from a metadata or Copyright Management Information angle, and for that we turn to Chapter 12 of the 1976 Copyright Act

Metadata refers to data that provides information about other data, though its definition can be complex Various digital image formats allow for the inclusion of metadata fields to store essential details like timestamps, geolocation, and camera settings, aligning with the fundamental concept of metadata Additionally, Copyright Management Information (CMI), a specific category of metadata, is defined by the Copyright Act and can be included in these metadata fields.

Copyright management information refers to details associated with copies or phonorecords of a work, including digital formats However, it excludes any personally identifiable information about users of the work or its copies, performances, or displays.

(1) The title and other information identifying the work, including the information set forth on a notice of copyright

297 3 W ILLIAM F P ATRY , P ATRY ON C OPYRIGHT § 6:72 n 2; see also 2 M ELVILLE B N IMMER & D AVID

Carnegie Mellon emphasized the significance of identifying the true copyright owner to mitigate the risks associated with false claims of ownership.

301 By Brian Roux, 3L, Tulane University Law School; Dan Collier, 3L, Tulane University Law School

302 See Specifications, M ETADATA W ORKING G ROUP , http://metadataworkinggroup.com/specs/ (last visited

(2) The name of, and other identifying information about, the author of a work

(3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright

Public performances of works by radio and television broadcast stations are exempt from restrictions regarding the identification of performers This means that the names and identifying details of performers are not required to be disclosed for performances fixed in works, excluding audiovisual formats.

Except for public performances by radio and television broadcast stations, audiovisual works must include the name and identifying information of credited writers, performers, or directors.

(6) Terms and conditions for use of the work

(7) Identifying numbers or symbols referring to such information or links to such information

The Register of Copyrights may establish regulations to request additional information, but cannot mandate the disclosure of any details regarding the user of a copyrighted work.

Many comments have mentioned metadata without clearly defining their interpretation, while others differentiate between metadata and Copyright Management Information (CMI) This lack of precision is important, as several commenters expressing concerns about metadata removal support solutions that do not differentiate between CMI and non-CMI within metadata fields.

The Association of Medical Illustrators (AMI) highlights a strong consensus among professional illustrators for incorporating more author-oriented information into digital image metadata The Berkeley Digital Library Copyright Project suggests that combining metadata with registries could help minimize the prevalence of orphan works Additionally, Public Knowledge and the EFF point out that, unlike physical images, digital images can easily embed copyright management information (CMI) through metadata fields or watermarks.

304 2013 Comments, supra note 3 (scroll down to Document 18; follow link to “Association Medical

305 Id (scroll down to Document 21; follow link to “Berkeley Digital Library Copyright Project”)

306 Id (scroll down to Document 40; follow link to “Electronic Frontier Foundation (EFF) and Public Knowledge (PK)”)

AMI expressed concerns about the simplicity of removing or "stripping" metadata, a sentiment echoed in various comments While the ability to manipulate metadata through certain software or file formats is a technical issue, it is not directly related to the discussion on orphan works Furthermore, the removal or falsification of Copyright Management Information (CMI) is already covered by existing legal remedies and protections outlined in specific sections of copyright law.

The 1976 Copyright Act, specifically sections 1202, 310, 1203, 311, and 1204, establishes criminal penalties and civil remedies for the unauthorized removal of copyright management information (CMI), including its deletion from the metadata of digital image files Additionally, concerns regarding potential infringers deliberately creating orphan works can be addressed under current copyright laws as acts of willful infringement.

Metadata, as defined in Section 1202, is addressed by existing laws that consider the privacy implications of retaining certain metadata while also acknowledging the technical challenges of file type conversions A complete ban on metadata removal overlooks these complexities and the burdens it would impose on social media platforms to capture external data from non-standardized structures Furthermore, the development of standards to alleviate these issues falls outside the jurisdiction of the Copyright Office and is not relevant to this discussion.

A key concern raised by commentators is whether the embedded metadata accurately reflects the current ownership of copyright, especially when rights may change hands after the metadata is added In this context, removing metadata can be beneficial as it eliminates outdated and incorrect information.

Incorporating a standardized identifier, like a copyright registration number, would enhance the viability of metadata management by ensuring easy identification and preservation alongside other data This identifier would consistently link back to an authoritative source, allowing for future updates and maintaining legal protections for copyright management information (CMI).

307 Id (scroll down to Document 18 from website; follow link to “Association Medical Illustrators”)

The article references various documents, including "Atlantic Feature Syndicate," "Croxton, Matthew David," "Dufresne, Walter," "Kane, Chris," "National Press Photographers Association," and "Picture Archive Council of America, Inc (PACA)," which can be found by scrolling to specific document numbers such as 19, 31, 38, 57, 70, 76, 77, and 78.

America", "Pro-Imaging.org", respectively)

Section 1202 of the 1976 Copyright Act safeguards copyright management information by addressing issues related to false copyright claims and the unauthorized removal or alteration of such information This provision effectively combats the misrepresentation of copyright ownership, ensuring that works are not wrongfully attributed to those who do not hold the actual rights, thereby protecting the integrity of intellectual property.

Statute of Limitations

The statute of limitations for copyright infringement claims plays a crucial role in protecting users, particularly concerning orphan works Criminal proceedings must be initiated within five years, while civil actions have a three-year window from the date of the alleged infringement This time limitation reduces the risk of lawsuits against unintentional infringers, ensuring that copyright holders must act promptly and preventing individuals from facing unexpected legal challenges long after the alleged violation occurred.

Each instance of copying, distributing, publicly performing, or displaying a work triggers a new claim for copyright infringement and restarts the limitations period This is particularly relevant for mass digitization projects, where works are frequently accessed and copied As long as these activities occur within the last three years, copyright owners can pursue infringement claims, regardless of how long a defendant has used the work A plaintiff's delay in initiating litigation may only bar a claim if it creates an inequitable situation, which would be evaluated under doctrines like laches, estoppel, or acquiescence.

333 See 17 U.S.C § 1202(a)-(b); see also 2 N IMMER ON C OPYRIGHT § 12A.10(A)-(B); 5 W ILLIAM F P ATRY ,

335 See, e.g., Murphy v Millennium Radio Group LLC, 650 F.3d 295 (3d Cir 2011); Agence France Presse v Morel, 769 F.Supp.2d 295 (S.D.N.Y.2011)

336 Written by Professor Glynn Lunney

339 Written by Professor Glynn Lunney.

Sections 302(d) and (e)

Section 302(d) allows for the recording of an author's death date or a statement confirming their living status, along with the source of this information, which is crucial for determining the copyright status of works This provision is already part of the law and is accessible to those who wish to submit relevant information to the Copyright Office We encourage libraries and content owners to utilize § 302(d) to enhance the Copyright Office’s records, and suggest that their databases serve as supplementary information linked to these records.

Section 302(e) relates to the presumption of an author’s death For orphan works, § 302(e) is necessary when the death date cannot be determined Section 302(e) reads as follows:

After 95 years from the first publication or 120 years from creation, whichever comes first, individuals can obtain a certified report from the Copyright Office This report must indicate that there is no evidence of the author's living status or that they died less than 70 years ago If these conditions are met, the individual is presumed to be entitled to the benefits of a 70-year death presumption Good faith reliance on this presumption serves as a complete defense against any infringement claims under copyright law.

Section 302(e) is currently underutilized and requires amendments to enhance its effectiveness We propose that if a work is classified as orphaned, it should impact its copyright duration Additionally, obtaining a certificate from the Copyright Office to confirm a work's orphan status would be beneficial A revised version of § 302(e) could serve this purpose, making it a more valuable tool in managing orphan works, even though it is still accessible for certain situations.

Duration and Orphan Works

Copyright is designed to last for "limited times," yet copyright orphans may remain in a state of limbo indefinitely While real-life orphans eventually transition out of their situation, copyright orphans can be left in a prolonged state of uncertainty unless the issue of duration is addressed This article examines the current copyright framework established by the 1976 Copyright Act and the minimum standards set by the Berne Convention, aiming to facilitate the growth of these "orphans." The ultimate goal is to liberate them from copyright restrictions, allowing them to embrace the next phase of their lives within the public domain.

340 Written by Professor Elizabeth Townsend Gard

342 Written by Professor Elizabeth Townsend Gard

Works published before 1978 are subject to Section 304 of the 1976 Copyright Act, which complicates the determination of copyright duration due to challenges in defining publication, identifying the publication date, ensuring proper notice, and assessing the renewal status of the original copyright For unpublished works created before 1978 or any works created after that year, copyright duration is typically based on the author's life, leading to further complexities regarding the identification of the author and their date of death.

This section addresses the challenges of establishing copyright terms for orphan works, including specific categories such as photographic, cinematographic, and anonymous works, while also examining the limitations imposed by U.S copyright regulations.

The article explores the termination of transfer in relation to international law, specifically addressing the Berne Convention and the rule of the shorter term In conclusion, it advocates for an amendment to the Copyright Act to establish a unique copyright term for orphan works.

To be in compliance with our Berne obligations, we must meet the minimum terms of copyright, as described under Article 7, which begins with a general minimum term for copyrighted works:

“The term of protection granted by this Convention shall be the life of the author and fifty years after his death.” 347

Copyright protection typically lasts for a minimum of 50 years after an author's death, but in the U.S and many EU countries, this term has been extended to 70 years However, for some authors, the date of death remains unknown, complicating the calculation of copyright duration This uncertainty prevents these works from transitioning into the public domain, resulting in a category of "orphaned" works that may never attain maturity.

An author who passed away in 1930 may have produced their final masterpiece that same year, which would have its copyright expire at the end of 2000 under U.S law However, determining the expiration date can be challenging without knowledge of the author's death date, leading to complications regarding Section 302 of copyright law.

Section 303(a) establishes the copyright term's end based on the author's death date, while Section 302(e) introduces a presumption of the author's date, reverting to a 95/120 system if there is no evidence of the author's current life status or death within the past seventy years This approach raises concerns about its alignment with the principles of the Berne Convention, particularly in cases like the 1930 work.

347 Berne Convention for the Protection of Literary and Artistic Works, art 7(1), Sept 9, 1886, 1161 U.N.T.S 3 (as revised at Paris on July 24, 1971, and amended on Sept 28, 1979, in S Treaty Doc No 99-

27) should be in the public domain as of January 1, 2001 For the current system under

Section 302(e), the term would be 95 years from publication, or 2025, or alternatively,

120 years from creation, or 2050, when in fact, if we knew the death date, the work would have been in the public domain in 2001

Revising Section 302(e) to state "70 years from creation and/or making available to the public, whichever is later," aligns with Berne Convention obligations and establishes international standards This change effectively addresses the duration issue for orphan works while ensuring compliance with global copyright norms.

While the United States does not provide special terms for cinematographic works, Berne does allow specific terms to be applied:

In the context of cinematographic works, member countries of the Union have the option to set the term of protection to expire fifty years after the work is made publicly available with the author's consent If the work is not made available to the public, the protection period may instead last for fifty years from the date of its creation.

An orphan cinematographic work could have its copyright term reduced to fifty years from its creation or public availability, whichever is longer, facilitating access to many works currently stored in archives like the Internet Archive, as well as home movies that have lost ties to their original owners This change would still protect large content owners, who would maintain a copyright duration of ninety-five years from publication Copyright would be removed early for works that were not made public within the first fifty years after creation or for which copyright holders cannot be identified after fifty years from publication Existing registration and renewal records would indicate the presence of interested copyright holders, while the new system would promote the registration of both current and older works to prevent orphaning.

Under the Berne Convention, anonymous and pseudonymous works receive specific protection due to the reliance on the author's death date for determining the duration of copyright Without knowledge of when the author passed away, it becomes impossible to calculate the term of protection, as outlined in Section 7(3).

Anonymous or pseudonymous works are protected under this Convention for fifty years after they are lawfully made available to the public If the pseudonym clearly reveals the author's identity, the protection term aligns with the standard duration specified in paragraph (1) Additionally, if the author of an anonymous or pseudonymous work chooses to disclose their identity, this may affect the protection duration.

According to Article 7(2), the protection term for works remains as stated in paragraph (1) if the author's identity is not disclosed Additionally, Union countries are not obligated to protect anonymous or pseudonymous works if it is reasonable to assume that the author has been deceased for fifty years.

Many orphan works face the challenge of anonymity, as their authors remain unknown To address this issue, we propose implementing the Berne minimum term for works classified as orphans This approach would provide a clear framework for managing these unidentifiable creations.

"Orphan works," which lack identifiable authors, are protected for fifty years after their public release or creation, whichever is longer If the author's identity is later revealed, the protection period can be extended to life plus seventy years.

Fair Use

A The Need for Further Education

Many users exhibit a general misunderstanding of copyright laws, particularly concerning the fair use doctrine and its implications for orphan works This confusion not only raises concerns about potential legal repercussions but also hinders the utilization of these works Enhancing copyright education for users could alleviate these issues The US Copyright Office offers valuable resources, including circulars on its website, which guide users on copyright registration and provide information about the fair use defense.

Many users are often unaware of the advantages of copyright registration, while others perceive the process as costly and burdensome with minimal rewards However, the Copyright Office offers valuable resources, including several circulars that simplify the registration and deposit procedures, such as "Copyright Basics."

Ensure your application meets acceptance criteria by reviewing guidelines on mandatory deposits for the Library of Congress and copyright registration for visual arts Specific circulars are available for various works, including motion pictures, musical compositions, and multimedia The Copyright Office emphasizes that there are more efficient and cost-effective methods to register works online Additionally, understanding fair use is crucial for creators.

416 Written by Morgan Embleton, 2L, Tulane University Law School; Gregory Scott Stein, 3L, Tulane University Law School; Professor Elizabeth Townsend Gard

Members of the dance community often express uncertainty about the applicability of the fair use doctrine, particularly concerning its inclusion of commercial uses and its relationship with orphan works This hesitation may hinder their ability to fully utilize creative resources For more information, refer to the Dance Heritage Coalition (DHC) document linked in the source.

The inability to reach authors or rights holders often leads to many works being unused due to concerns over liability This fear creates a chilling effect on creative activity, which contradicts the fundamental goal of copyright law: to promote the advancement of science and the arts.

Registering work with the US Copyright Office is often a daunting and costly process, fraught with bureaucratic challenges and clerical errors Despite the theoretical ease of registration, many individuals find it difficult to navigate, leading to significant consequences, such as the inability to pursue legal action or recover attorney's fees and damages This reality highlights the need for a more accessible and efficient registration system to protect creators' rights effectively.

420 Copyright Basics, U.S C OPYRIGHT O FFICE , http://www.copyright.gov/circs/circ01.pdf (last visited Mar

421 Make Sure Your Application Will Be Acceptable, U.S C OPYRIGHT O FFICE , http://www.copyright.gov/circs/circ01c.pdf (last visited Mar 6, 2013)

422 Mandatory Deposit of Copies or Phonorecords for the Library of Congress, U.S C OPYRIGHT O FFICE , http://www.copyright.gov/circs/circ07d.pdf (last visited Mar 6, 2013)

423 Copyright Registration for Works of the Visual Arts, U.S C OPYRIGHT O FFICE , http://www.copyright.gov/circs/circ40.pdf (last visited Mar 6, 2013)

424 Information Circulars and Factsheets, U.S C OPYRIGHT O FFICE , http://www.copyright.gov/circs (last visited Mar 6, 2013)

425 See Copyright Office Fees, U.S C OPYRIGHT O FFICE , http://www.copyright.gov/circs/circ04.pdf (last visited Mar 6, 2013) (“Advantages of online filing include a lower filing fee of $35”); see also Copyright

The Need for Further Education

Many initial comments reveal a widespread misunderstanding of copyright, the fair use doctrine, and their implications for orphan works This confusion not only raises concerns about possible litigation but also hinders users from utilizing orphan works effectively Enhancing copyright education for potential users could help alleviate these misunderstandings The US Copyright Office offers circulars on its website that guide individuals on copyright registration and provide information about the fair use defense.

Many users are often unaware of the advantages of copyright registration, while some perceive the process as costly and cumbersome with minimal benefits However, the Copyright Office offers valuable resources, including several circulars that simplify the registration and deposit process, such as "Copyright Basics."

To ensure your application is acceptable, it is essential to understand the mandatory deposit of copies or phonorecords for the Library of Congress and the copyright registration process for visual arts The Copyright Office provides circulars for registering specific works, such as motion pictures, video recordings, musical compositions, and multimedia projects Additionally, they highlight more efficient and cost-effective methods for online registration It is also important to be aware of fair use guidelines in relation to copyright registration.

416 Written by Morgan Embleton, 2L, Tulane University Law School; Gregory Scott Stein, 3L, Tulane University Law School; Professor Elizabeth Townsend Gard

Members of the dance community express concerns about relying on the fair use doctrine, particularly regarding its applicability to commercial uses and its relationship with orphan works For more information, visit the Dance Heritage Coalition (DHC) link provided in Document 32.

The inability to reach authors or rights holders often leads to many works being unused due to concerns over liability This fear creates a chilling effect on creative activities, which contradicts the fundamental goal of copyright law: to promote the advancement of science and the useful arts.

Registering work with the US Copyright Office is a complex and costly process, often fraught with bureaucratic hurdles and clerical errors As a result, many creators, like Andrew B Singer, find themselves unable to collect attorney’s fees and damages due to failure to register their work, despite having a strong case This highlights the need for a more accessible and efficient registration system to protect the rights of creators.

420 Copyright Basics, U.S C OPYRIGHT O FFICE , http://www.copyright.gov/circs/circ01.pdf (last visited Mar

421 Make Sure Your Application Will Be Acceptable, U.S C OPYRIGHT O FFICE , http://www.copyright.gov/circs/circ01c.pdf (last visited Mar 6, 2013)

422 Mandatory Deposit of Copies or Phonorecords for the Library of Congress, U.S C OPYRIGHT O FFICE , http://www.copyright.gov/circs/circ07d.pdf (last visited Mar 6, 2013)

423 Copyright Registration for Works of the Visual Arts, U.S C OPYRIGHT O FFICE , http://www.copyright.gov/circs/circ40.pdf (last visited Mar 6, 2013)

424 Information Circulars and Factsheets, U.S C OPYRIGHT O FFICE , http://www.copyright.gov/circs (last visited Mar 6, 2013)

425 See Copyright Office Fees, U.S C OPYRIGHT O FFICE , http://www.copyright.gov/circs/circ04.pdf (last visited Mar 6, 2013) (“Advantages of online filing include a lower filing fee of $35”); see also Copyright

The Copyright Office offers a factsheet on fair use; however, it lacks the depth of guidance found in its circulars for work registration Additionally, the current factsheet may discourage users from utilizing orphan works.

If obtaining permission for copyrighted material is not feasible, it's best to refrain from using it unless you're certain that fair use applies The Copyright Office cannot assess whether a specific use qualifies as fair or provide guidance on copyright infringements In cases of uncertainty, consulting an attorney is recommended.

The Copyright Office's educational initiatives require a more effective outreach strategy, as many photographers are not registering their works due to a lack of understanding of the system Comments indicate that essential aspects of copyright are not being comprehended, highlighting the need for comprehensive education among interested groups, collaboration with the Copyright Office, and support from non-profits focused on copyright awareness Additionally, there must be increased awareness regarding the existing mechanisms within the Copyright Act that can help mitigate the challenges posed by orphan works for both rightsholders and users.

Our Proposed Solutions

Encourage Registration of Works at the U.S Copyright Office

Over 90% of photographers reportedly do not register their works, highlighting a critical need for increased education among rightsholders Proper registration offers substantial legal advantages that can protect their creative rights and enhance their ability to enforce those rights effectively.

Establishing a public record of the copyright holder and creator, along with relevant details about underlying works and any public domain elements, is essential The absence of information regarding the copyright holder can lead to confusion and potential legal issues.

Basics, U.S C OPYRIGHT O FFICE , http://www.copyright.gov/circs/circ01 (last visited Mar 6, 2013)

Online submissions of published photograph collections and automated photo databases may be allowed, provided the applicant contacts the Visual Arts Division at (202) 707-8202 for prior approval and specific instructions.

426 Fair Use, U.S C OPYRIGHT O FFICE , http://www.copyright.gov/fls/fl102.html (last visited Mar 6, 2013)

429 Copyright Basics, U.S C OPYRIGHT O FFICE , http://www.copyright.gov/circs/circ01.pdf (last visited Mar

6, 2013) one of the key problems associated with orphan works Registration provides the beginning of a public record 430

 Provides access to the courts for a copyright infringement suit A work must be registered in order to file a complaint in the U.S court system 431

 If registered within five years of publication, the registration “establishes prima facie evidence in court of the validity of the copyright.” 432

Therefore, the registrant is presumed to be the copyright holder, unless evidence is produced to the contrary

Registering a work within three months of its publication or before any infringement occurs allows the copyright owner to seek statutory damages and attorney’s fees in court If registration is completed after this period, the copyright owner can only claim actual damages and profits.

 Provides additional protection against importation of infringing copies through the U.S Customs Service 434

Registering with the U.S Copyright Office provides significantly stronger protection than informal registries It is essential to encourage leaders within content owner communities, particularly photographers, to educate their members about the benefits of registration Additionally, they should assist with the registration process and collaborate with the Copyright Office to address any obstacles that may hinder registration.

Use § 412 as a mechanism more aggressively with regard to unregistered works

Section 412 mandates registration for eligibility to receive statutory damages and attorney’s fees, applicable to both domestic and foreign works However, the section could be improved, as it currently limits registered works to only actual damages and injunctions following infringement This limitation may provide significant reassurance for orphan work uses, especially for library digitization initiatives.

Registries should enhance the Copyright Office records, not replace them

There have been numerous calls for the establishment of registry systems or databases for information related to copyrighted works We believe that while various information sources are valuable, they should be integrated with the Copyright Office rather than creating a separate registry Enhancing connections through collaborative partnerships between government and private entities is essential Ultimately, the Copyright Office should continue to serve as the primary authority overseeing records of copyrighted materials.

Create a Copyright Ownership and Misinformation Dispute Mechanism

To address concerns about misinformation and ownership disputes, it is essential to establish a system within the Copyright Office This system would ensure that contributions from others can be accurately verified and corrected Without such a mechanism, registries beyond the Copyright Office may lack the necessary means to rectify false information, potentially leading to complications in copyright management.

Section 512(c) establishes a notice-and-takedown system aimed at identifying copyright holders and addressing minor infringement issues within social media, while minimizing costs This proposed dispute mechanism for orphan works could function similarly, but may require an independent body to make unbiased decisions.

5 Fair Use needs to be clearer for occasional users of orphan works and mass digitizers

HathiTrust may be a key turning point for fair use and digitization projects

While the current ruling comes from a district court, we believe that any resolution regarding fair use and mass digitization of orphan works should be explicitly incorporated into the Copyright Act, rather than depending on judicial interpretations.

If a work is deemed orphan in its original source country, that designation should

be available for use in the U.S without a further diligent search

The modified Rule of the Shorter Term allows parties in the United States to rely on the orphan status determinations made by the European Union or Canada, eliminating the need for redundant searches This streamlining enhances efficiency in assessing copyright status for works and provides U.S users with a competitive advantage by leveraging established processes for orphan works both domestically and internationally.

If a work is deemed orphan, that work should be measured for duration purposes

When assessing copyright status, especially when the death date is unknown, it is essential to consider the Berne Convention's minimum requirements and the rights related to the termination of transfer.

Duration is a crucial factor that has not been adequately addressed in the Comments We believe that if a work is classified as an orphan, a new duration term should be established, aligned with the minimum requirements set by the Berne Convention.

We propose amending Section 302(e) to extend the copyright duration from 95/120 years to 50 years from the date of creation or public availability, whichever is later This change would expedite the entry of orphan works into the public domain when the author's death date is unknown Such an amendment would align with our Berne Convention obligations and harmonize our laws with international standards.

The baseline protection for orphan works should align with the minimum requirements set by the Berne Convention, while also considering the potential for termination of transfer rights Even in cases where the copyright holder is untraceable, the original author may still be locatable Therefore, it is feasible to implement existing termination of transfer rights or establish a dedicated system for managing orphan works.

Any solution should be comprehensive to all orphan works, rather than to a

While addressing the orphan work problem gradually is appealing, there are concerns that special legislation for libraries or photographers could leave less powerful groups without protection for their own orphan works Similar to fears surrounding Google's potential self-serving solutions, the implementation of specific measures for mass digitizers may inadvertently exclude other users from receiving necessary support.

ITUs may be useful in identifying orphan works

We support the creation of an Intent to Use (ITU) database for individuals seeking to utilize orphan works This initiative, endorsed by the Copyright Office, would stipulate that after a designated time frame, any further registrations would not qualify for statutory damages or attorney's fees If an ITU is submitted and no copyright owner emerges, the rights to statutory damages and attorney's fees would be relinquished The proposed system should be voluntary and incentivized, focusing solely on the usage of the work rather than its specific application Additionally, copyright holders should not have the authority to selectively object to certain uses; instead, the system should notify absent copyright owners that the legal status of their work is transitioning to orphan status.

Third-parties should be able to rely on the orphan status of a work

An orphan work is defined by its status rather than the original creator, allowing third parties to utilize the work without needing permission from the original user.

To facilitate the use of orphan works, it is essential to create a comprehensive database that lists all known orphan works This database will allow third parties to utilize these works without the need for additional diligent searches, streamlining access and promoting creativity.

Provide more copyright law education for rightsholders and users

Enhancing education on copyright law is essential, and we advocate for interest groups to collaborate with the U.S Copyright Office to create tailored educational programs, particularly aimed at photographers.

Expand § 302(d)

Expanding § 302(d) would improve access to information about copyrighted works by incorporating additional data from multiple sources, enriching the Copyright Office's records, and establishing an online dispute resolution system for record information.

The Diligent Search requirement should be objective

If Congress introduces orphan works legislation, it is essential that any user requirements for conducting a diligent search for copyright owners are grounded in clear, objective standards The U.S Copyright Office should oversee a system to verify the diligence of these searches, ensuring that records of the registries consulted and the findings are publicly accessible Additionally, any supplementary information gathered during the diligent search should be linked to the copyright office record and made available in a digital format for easy attachment to the digital file of the work.

Concluding Thoughts

In its October 2012 Notice of Inquiry, the U.S Copyright Office inquired about the evolution of legal thinking regarding orphan works since 2008 Our research indicates that while the law has largely remained unchanged, the advocates for solutions to the orphan works issue have shifted, with libraries and archives now seeking special legal exceptions for digitization, often sidelining occasional users Initial comments reveal that the voices of these occasional users have been overshadowed by the interests of mass digitizers and copyright holders The current mass digitization challenge differs from the issues considered by the U.S Copyright Office in 2005-2006 and cannot be resolved through the same legal avenues proposed in 2008 Nonetheless, we believe that a fair balance can be struck between enabling certain uses of orphan works for all users and safeguarding copyright holders' interests under existing law, without needing to tackle the mass digitization issue directly.

Parsing the many legal issues involved was no easy task, but our Advanced

The Copyright Class on Orphan Works highlighted that, upon deeper examination of the Copyright Act, orphan works may not be as significant an issue as previously thought The existing law already equips rightsholders with mechanisms to enforce their copyrights and prevent misuse, while the U.S Copyright Office possesses tools to facilitate connections between users and rightsholders, such as the Copyright Registry and educational material publication services The conversation has lacked awareness and understanding, which this Reply Comment aims to address Both rightsholders and users have failed to fully utilize their existing legal rights, making the creation of a new system unnecessary and potentially disruptive to the balance of rights Therefore, it is recommended that the U.S Copyright Office and Congress focus on enhancing the current system based on the suggestions provided.

Orphan works present a significant challenge that requires urgent improvements We propose starting with the existing system and implementing careful modifications to enhance record-keeping, promote registration, and utilize existing legal tools Libraries play a crucial role in our society and may benefit from a codified version of fair use tailored to their digitization efforts Additionally, there are valuable opportunities to innovate the current framework by introducing more effective legal and non-legal resources, such as an online dispute resolution system for copyright ownership and rights inquiries By viewing the current system as a foundation, we can explore exciting enhancements like supplemental registries and collaborations to develop a more comprehensive record and information system, a possibility made feasible in the twenty-first century.

We appreciate the chance to present our Reply Comment and trust that our research and insights will contribute meaningfully to the ongoing conversation about orphan works For further reference, additional research materials can be accessed at Tulane University Law School under the guidance of Professor Townsend Gard.

Summary of 2008 Legislation

The previous legislation regarding Orphan Works consisted of the Orphan Works Act of 2006 (H.R 5439), The Orphan Works Act of 2008 (H.R 5889) and Shawn

The Bentley Orphan Works Act of 2008 (S 2913) is based on the 2006 Copyright Office Report on Orphan Works, which recommended that users conducting a diligent search for copyright owners should benefit from limited remedies against them This legislation emphasizes the importance of providing proper attribution to authors and copyright owners while allowing users to utilize orphan works more freely.

The 2006 Act defined the parameters of a diligent search, mandating the review of the Register of Copyright information and the use of accessible technology This search process involves examining copyright records to identify and locate owners, ensuring that the information collected is publicly available and regularly updated by the Copyright Office.

The Orphan Works Act of 2008 introduced additional requirements beyond the recommendations of the Report, mandating that infringers file a Notice of Use with the Register of Copyrights and include a mark indicating the use of the infringing work Furthermore, the Act revised the definition of a diligent search, specifying that, unlike the 2006 Act, infringers must utilize sources beyond just the Register of Copyrights for their search efforts.

The Act emphasizes the significance of the Register by enhancing its accessibility, as outlined in Section 3, which created an electronic database for searching pictorial, graphic, and sculptural works under copyright Additionally, the Act mandates that infringers conduct their search within a reasonable timeframe relative to the infringement.

The Shawn Bentley Orphan Works Act of 2008 introduced legislation similar to bill 438, but the Senate version emphasized the need for a diligent search This act specifically targeted online databases, mandating a search of Copyright Office records available on the Internet, along with the utilization of other relevant online databases.

In terms of relief available, the proposed legislation also followed the 2006 Copyright Report The Report recommended limiting relief to reasonable monetary

435 Written by Melinda Schlinsog, 2L, Tulane University Law School

436 Orphan Works Act of 2006, H.R 5439, 109th Cong (2006)

437 Orphan Works Act of 2008, H.R 5889, 110th Cong (2008)

The Shawn Bentley Orphan Works Act of 2008 (S 2913, 110th Congress) introduces a framework for compensation that includes a noncommercial exception and injunctive relief, alongside a new use exception Each of the proposed bills incorporates recommendations from the Report to outline the available remedies for orphan works.

Our Analysis

Reasonable Compensation

The Act restricts remedies to reasonable compensation for users who, after performing a good faith search to identify the owner of the infringed copyright, are unable to locate them However, a significant concern arises from this policy, as the agreed-upon price post-infringement is likely to differ, particularly if the infringing party profited from the use The class did not spend considerable time discussing reasonable compensation, as it was insufficiently addressed in the Comments for meaningful dialogue.

Attribution

The Act mandates that attribution be given to the legal owner of the copyright, distinguishing between the legal owner and the author, which marks a shift from a moral-rights attribution system The class noted that this requirement places the onus on users to identify the legal owner instead of simply acknowledging the author Due to insufficient reflection on the topic in the Comments, the class did not spend time discussing attribution further.

Orphan Work Symbol

The Act mandates the inclusion of a symbol when using an Orphan Work, serving to alert copyright holders of its usage and to inform potential users that the work is available While some class members opposed the idea of marking the work, others argued that a clear designation would allow users to trust its status as an orphan Ultimately, the class chose not to address the symbol, as it was not covered in any of the Comments.

Civil Action Restrictions

The Act mandates that initial pleadings must explicitly assert eligibility for civil action limitations; failure to do so results in a waiver of the defense Professor Lunney highlighted that this requirement is atypical in civil procedure, thereby restricting the application of the defense Our class did not focus on attribution, as it was not addressed in the Comments for discussion.

Limitations on Remedies

The Act's remedies are not limited if an owner and user fail to engage in good faith negotiations regarding reasonable compensation or do not make timely payments after reaching an agreement In our class discussion, we examined the potential implications of this section for libraries Library groups generally believe that their use of orphan works is protected under fair use, as established in the HathiTrust case However, we noted that the HathiTrust decision is not a stable legal precedent for libraries, as it is merely a district court ruling.

Qualifying Search

The Act outlines four key elements for a qualifying search regarding orphan works Firstly, the search must occur close in time to the infringement, leading to discussions about whether a universal Orphan Work label should be established after an initial search Secondly, users are required to make diligent efforts, including a minimum search of Copyright Office records and the Internet, with suggestions to also explore other databases like BMI and ASCAP, contingent on their connection to the Copyright Office Thirdly, reliance on best practices is necessary, though this does not establish a definitive legal standard Lastly, a lack of identifying information on the material disqualifies it from being considered a qualifying search Failure to meet any of these criteria results in limited remedies for the user.

APPENDIX B: Foreign Solutions as Models? 439

Countries worldwide have implemented various legislative measures to address the challenges posed by orphan works in the era of mass digitization For example, Canada has created specific solutions to facilitate access to orphan works, while France categorizes them within a broader framework of out-of-commerce works In the Nordic countries, orphan works are addressed through collective licensing Unlike the United States, which has explored legislative options that limit remedies if a copyright owner is found, foreign approaches primarily focus on licensing schemes These schemes require a diligent search for the copyright owner before use, but differ from U.S methods by mandating that users obtain a license prior to utilizing the work Our research on international solutions serves as valuable reference material.

Our class ultimately decided to focus on existing elements within the Copyright Act to address the orphan work problem, rather than pursuing licensing schemes Through our analysis of various foreign laws, we gained valuable insights into the strengths and weaknesses of each country's approach to this issue.

The E.U Directive

In late 2012, the European Union adopted Directive 2012/28, allowing libraries and educational institutions to legally digitize large quantities of orphan works This Directive mandates that member states establish a copyright exception for orphan works specifically for these institutions, outlining essential requirements that must be fulfilled to utilize this exception The effectiveness of the Directive hinges on how these requirements are defined and interpreted, which will ultimately shed light on the feasibility of implementing a statutory copyright exception for orphan works.

The scope of eligibility for the exception was defined narrowly First, only permitted users—libraries or educational institutions—are allowed to take advantage of

439 Written by Alessandra Suuberg, 2L, Tulane University Law School; Zachary Zelaney,LL.M., Tulane University Law School

440 The E.U Directive is also a limitation on remedies scheme

441 Lecture Summary, Orphan Works, WIPO Seminar (May 2010), http://www.wipo.int/edocs/mdocs/sme/en/wipo_smes_ge_10/wipo_smes_ge_10_ref_theme11_02.pdf

442 Written by Gregory Scott Stein, 3L, Tulane University Law School; see also 2013 Comments, supra 3 (scroll down to Document 87; follow link to “Stein, Gregory Scott”) (discussing the E.U Directive)

443 Directive 2012/28, of the European Parliament and of the Council of 25 October 2012 on Certain Permitted Uses of Orphan Works, 2012 O.J (L 299) 5 [hereinafter Directive]

The exception outlined in Article 6 of the directive applies specifically to the digitisation, availability, indexing, cataloguing, preservation, or restoration of orphan works Only certain types of copyrighted materials, including published written works, cinematographic, and audiovisual works held by eligible institutions, qualify for this exception Notably, photographs are explicitly excluded from being classified as orphan works Overall, these provisions stand out for their clarity compared to other sections of the Directive.

The Directive mandates a "recorded diligent search" before utilizing orphan works, yet it lacks a precise definition of this search process Each country is responsible for determining the specific resources and registries to be examined, although the Directive offers some general guidelines to assist in this implementation.

Users must conduct searches in the state where the work originated, ensuring that the designated registries align with the specific type of work Additionally, states are required to engage with rights holders and users to determine the appropriate registries for users to search The Directive also outlines a comprehensive list of registries that must be consulted, categorized by the type of work involved.

Our Reply Comment addresses the complex challenge of establishing a universal exception for all orphan works across various users, which is significantly more intricate than the objectives of the Directive The Directive highlights the necessity for precise legislative drafting and the complexities involved in defining a diligent search As EU member states develop national laws to address orphan works, we encourage Congress to draw lessons from both the successes and shortcomings of these implementations when crafting U.S legislation on orphan works.

Extended Collective Licensing

Since the 1960s, Nordic countries have employed extended collective licensing as a solution for copyright issues, effectively blending compulsory and traditional collective agreements This approach is particularly suitable for scenarios where rights holders are numerous, dispersed, and challenging to locate In Denmark, Section 50 of the Consolidated Act on Copyright permits users to utilize the works of authors not represented by a collective rights organization, following the terms outlined in the license agreement established with the organization.

454 Thomas Riis & Jens Schovsbo, Extended Collective Licenses and the Nordic Experience – It’s a Hybrid but is it a VOLVO or a Lemon?, 33 C OLUM J.L & A RTS 471 (2010)

455 Id under Section 51, unrepresented rights holders can still claim individual compensation 456

In Finland, Section 13 of the Copyright Act provides for reproduction of a published work by virtue of an extended collective license 457

Extended collective licensing schemes are inherently shaped by the cultural context of the Nordic societies they originate from, which is crucial for assessing their rules and determining their applicability in other systems.

Outside of Scandinavia, an extended collective licensing scheme is being considered in the UK The proposed legislative changes affecting orphan works in the

UK are contained 116A through 116D of the Enterprise and Regulatory Reform (ERR) Bill, which is being read at the report stage in Parliament 459

Since 1988, Canada has utilized government licenses to facilitate the use of orphan works, as outlined in Section 77 of the Copyright Act Prospective users must apply to the Copyright Board, which has the discretion to grant licenses The "Unlocatable Owner Provision" mandates that applicants make reasonable efforts to locate the copyright owner, who retains a five-year period post-license expiration to claim royalties or initiate recovery actions.

A 2009 Canadian study revealed over 400 applications covering more than 12,000 works, with the board spending a median of 47 days on non-commercial applications and 63 days on commercial ones The study found that 37% of applicants were commercial organizations, 31% individuals, 13% educators and institutions, 11% government agencies, and 3% galleries and museums, with charitable and community groups making up the remainder Although the Canadian model was not previously seen as a viable option for the United States, it has garnered interest from entities considering mass digitization due to its reliability.

456 Consolidated Act on Copyright 2010, No 202, Art 50-51 (2010) (Den.)

459 Enterprise and Regulatory Reform Bill 2012-13, UK Parliament Website, http://services.parliament.uk/bills/2012-13/enterpriseandregulatoryreform.html (last visited Mar 4, 2013)

460 Lesley, Orphan Works in Canada: Unlocatable Copyright Owners, C OPYRIGHTLAWS COM (Jan 9, 2013), http://www.copyrightlaws.com/canadian/orphan-works-in-canada-unlocatable-copyright-owners/

461 See Rina Elster Pantalony, The Canadian Model for Orphan Works, B IBLIOTECA N ACIONAL D E E SPAẹA , http://www.bne.es/opencms/es/LaBNE/Docs/Canadian_model_R_Pantalony.pdf (last visited Mar 6, 2013)

463 J EREMY DE B EER & M ARIO B OUCHARD , C ANADA ’ S “O RPHAN W ORKS ” R EGIME : U NLOCATABLE

C OPYRIGHT O WNERS AND THE C OPYRIGHT B OARD (Dec 1, 2009), http://www.cb-cda.gc.ca/about- apropos/2010-11-19-newstudy.pdf

South Korea, Japan, and India have adopted similar strategies to Hungary regarding orphan works In 2009, Hungary revised its Copyright Act to allow the use of orphan works under specific conditions The amended law empowers the Hungarian Patent Office to issue licenses for the use of orphan works to applicants who conduct a thorough documented search and provide compensation for their usage.

In South Korea, individuals seeking to use orphan works must apply to a designated board or government agency that has the authority to issue licenses According to Article 50 of the Korean Copyright Act, the Ministry of Culture and Tourism is responsible for granting these licenses, provided that the user has made reasonable efforts to locate the rights holder.

“considerable effort” to search for the author, (b) the user indicates the intent of the use, and (c) the use is licensed with approval and meets other criteria specified by a

Presidential decree The Ministry posts information on such licenses in its information and communication network 468

In South Korea, a "considerable effort" is required to locate a rights holder, which includes inquiries made to collective management organizations overseeing the relevant work If no response or an indication of unawareness of the rights holder is received within one month, the user is permitted to apply for a license.

Ministry The user must also publish an announcement in a newspaper of general circulation or on the web page of the Ministry of Culture for ten days 469

The Ministry of Culture is required to publish an application for the use of an orphan work in the Official Gazette for a duration of fifteen days Additionally, upon approving any license for the use of orphan works, the Ministry must notify the applicant and publish the approval in the Official Gazette The Ministry's website will also feature essential details including the title and publication date of the work, the author's name, the applicant's name, the conditions for exploitation approval, the exploitation period, compensation fees, and the exploitation method Rights holders who wish to contest an application can submit a registration certificate proving authorship, along with a copy of the work that displays their name or title.

The Ministry of Culture and Tourism establishes compensation rates for the utilization of orphan works Users are required to deposit these amounts in designated jurisdictions as outlined in the Enforcement Decree Additionally, they must inform the entitled recipients about the deposit and publicly announce it in accordance with the Ordinance of the Ministry of Culture.

465 Orphan Works and Mass Digitization, 77 Fed Reg 64,555, 64,560 (Oct 22, 2012)

466 Government Regulation on the Detailed Rules Related to the Licensing of Certain Use of Orphan Works, Arts 2(1), 2(2), 3, Decree 100/2009, V 8 (Hun.)

468 Copyright Act of Korea, No 9785 (2009) (S Kor.)

Japan institutes their approach under Article 67 regarding the exploitation of works in the case where the copyright owner thereof is unknown:

When a work has been publicly available for an extended period, it can be utilized under a compulsory license granted by the Commissioner of the Agency for Cultural Affairs This license is applicable when the copyright owner is untraceable or unknown, following diligent efforts to locate them The copyright owner or their representative must deposit a compensation amount, determined by the Commissioner, which reflects the standard royalty rate as specified by Cabinet Order.

To apply for a compulsory license, an individual must submit an application to the Commissioner of the Agency for Cultural Affairs This application should outline the intended means of exploiting the work and include additional information specified by Cabinet Order Furthermore, the applicant must provide supporting data demonstrating that the copyright owner cannot be located, along with any other documentation required by Cabinet Order.

Reproduced copies of the work must include a notice indicating that their reproduction is licensed under the specified provisions, along with the date of the license issuance.

Additionally, Japan discusses the issue of just compensation under Article 74:

(1) A person who is liable to pay compensation:

(i) where the copyright owner refuses to receive or cannot receive the compensation;

(ii) where the copyright owner cannot be identified with no fault on the part of the above-mentioned person;

(iii) where that person brings an action mentioned in Article 72, paragraph (1) with respect to the amount of the compensation;

(iv) where the right of pledge has been established on the copyright (except in the case where the authorization is obtained from the pledgee)

According to item (iii) of the previous paragraph, when requested by the copyright owner, an individual responsible for compensation must pay the estimated amount and also deposit the difference between their estimate and the final compensation amount determined.

(3) The deposit of a compensation under the provisions of Article 67, paragraph (1), Article 67bis, paragraph (4) or the preceding two paragraphs or that of a security money under the provisions of Article

67bis, paragraph (1) shall be made at a deposit office conveniently near to the known domicile or residence of the copyright owner if he has such in

472 Chosakuken-Ho [Copyright Law], Law No 48 of 1970, 2009, art 67, 74 (Japan) this country or otherwise near to the domicile or the residence of the depositor

The depositor must inform the copyright owner about the deposit, unless the owner is unknown or notification is otherwise impossible.

India, along with countries like Bangladesh and Canada, has adopted a pragmatic approach to orphan works by allowing them to be licensed from a central authority after unsuccessful attempts to locate their authors In contrast, Argentina, Brazil, and Chile have moved orphan works into the public domain Additionally, India has implemented a Copyright Act of 2012 that clarifies definitions from its earlier 1957 Act.

Out-of-Commerce Books

Remedies

1) Limitation of Injunctive Relief a) 27% addressed this issue explicitly, out of all comments i) 7% favored at least some, out of all comments ii) 13% opposed any, out of all comments iii) 7% did not directly state whether they favored or opposed, out of all comments

(1) 2% favored at least some by implication, out of all comments

In a recent analysis of opinions on a specific issue, 5% of respondents explicitly opposed any action, while 24% expressed support for at least some measures Conversely, 48% directly opposed any proposed solutions, and 28% did not clearly state their position Among those who addressed the issue, 8% favored at least some actions by implication, whereas 20% opposed any measures by implication.

2) Limitation of Statutory Damages and Attorney’s Fees a) 58% addressed this issue explicitly, out of all comments i) 36% favored at least some, out of all comments ii) 13% opposed any, out of all comments iii) 8% did not directly state whether they favored or opposed, out of all comments

(1) 5% favored at least some by implication, out of all comments

A survey revealed that 62% of respondents favored at least some aspects of the issue when explicitly addressed, while 23% expressed opposition Among those who commented explicitly, 15% did not state a clear position Additionally, 9% favored certain aspects by implication, whereas 6% opposed them by implication Overall, only 3% opposed any aspect outright.

3) Limitation of Copyright Term a) 13% addressed this issue explicitly, out of all comments i) 4% favored, out of all comments

480 Written by Daniel Collier, 3L, Tulane University Law School

The analysis of comments reveals that 3% expressed opposition, while 5% did not clearly indicate a stance for or against the subject These statistics are derived from our class's subjective interpretation and should be viewed as approximations, rounded to the nearest percent.

(1) 3% favored by implication, out of all comments

In a recent analysis of comments regarding a specific issue, 33% of respondents expressed explicit support, while 25% voiced explicit opposition Additionally, 42% of the comments did not clearly indicate a stance Among those who addressed the issue, 25% favored it by implication, whereas 17% opposed it by implication Overall, only 2% of the comments were implicitly opposed.

Diligent Search

A recent analysis revealed that 56% of respondents advocated for a specific diligent search requirement Among the comments, 16% of those based on factual evidence supported this notion, while 29% favored it among those who specifically suggested a diligent search The Copyright Office received 10% support overall, with 18% backing from those advocating for a diligent search requirement Third-party databases garnered 24% overall favor, increasing to 43% among proponents of a specific diligent search Lastly, experts accounted for 5% support overall, with 10% favoring the diligent search requirement among their suggestions.

2) Intent to Use Registry 486 a) 16% addressed the issue directly, out of all comments i) 11% favored, out of all comments

The proposed 2008 Orphan Works legislation utilizes a flexible standard of "reasonable and appropriate under the facts relevant," rather than mandating the use of specific databases or systems for conducting diligent searches This approach is outlined in the Orphan Works Act of 2008, S 2913, 110th Cong (2008) § (b)(2)(A)(ii)(I).

483 This includes the specific requirement that a diligent search be conducted through the Copyright Office Comments requiring third-party databases and/or paid experts as well are not included

A thorough search for copyright information must encompass third-party databases in addition to the Copyright Office, ensuring a comprehensive review Comments that suggest relying solely on the Copyright Office or paid experts are not considered sufficient.

A diligent search must involve paid experts alongside third-party databases and the Copyright Office, as comments that rely solely on third-party databases or the Copyright Office are excluded.

The Intent to Use Registry serves as a centralized repository for the utilization of orphan works Among the feedback received, 67% of respondents who specifically addressed the matter expressed support for the registry, while 33% opposed it Overall, only 5% of all comments were against the concept.

Copyright Office User Groups

1) Large-Scale Access Beneficiaries 488 a) 32% discussed plans to support LSABs, out of all comments i) 7% favored plans to support LSABs, out of all comments ii) 24% opposed plans to support LSABs, out of all comments b) 22% favored plans to support LSABs, out of those who discussed them c) 77% opposed plans to support LSABs, out of those who discussed them

2) Large-Scale Access Users 489 a) 40% discussed plans to support LSAUs, out of all comments i) 32% favored plans to support LSAUs, out of all comments ii) 8% opposed plans to support LSAUs, out of all comments b) 81% favored plans to support LSAUs, out of those who discussed them c) 19% opposed plans to support LSAUS, out of those who discussed them

3) Secondary Users 490 a) 37% discussed plans to support SUs, out of all comments i) 20% favored plans to support SUs, out of all comments ii) 17% opposed plans to support SUs, out of all comments b) 54% favored plans to support SUs, out of those who discussed them c) 45% opposed plans to support SUs, out of those who discussed them

4) Enthusiast Users 491 a) 42% discussed plans to support EUs, out of all comments i) 36% favored plans to support EUs, out of all comments ii) 6% opposed plans to support EUs, out of all comments b) 87% favored plans to support EUs, out of those who discussed them c) 13% opposed plans to support EUs, out of those who discussed them

5) Private Users a) No commenter identified himself as a private user or discussed primarily private uses of orphan works

487 See Report on Orphan Works, supra note 58, at 36-39

Rutgers University Libraries categorize large-scale commercial users of orphan works as entities not included in the Copyright Office report For further details, refer to the 2013 Comments, specifically Document 80, available through the provided link.

489 These are large-scale noncommercial users of orphan works

490 These are small-scale commercial users of orphan works

491 These are small-scale noncommercial users of orphan works.

Stakeholder Affiliation

Nearly half (47%) of the comments came from individuals affiliated with an academic institution, library, or museum Specifically, 25% of all comments were made by those with an academic affiliation, with 53% of this subgroup identifying as such Additionally, 18% of commenters reported a library affiliation, while 37% of those within this group confirmed their connection to a library Lastly, 3% of all comments originated from individuals affiliated with a museum, with 7% of museum-affiliated commenters acknowledging their ties.

A significant 58% of commenters identified with creative fields such as Movies, Music, Photography, Visual Art, Writing/Publishing, or Software Specifically, 7% of all comments were related to Movies, with 11% of those commenters expressing a strong affiliation In Music, 9% of comments reflected this interest, rising to 15% among those who engaged further Photography garnered 13% of total comments, with a notable 23% among more engaged commenters Visual Art also attracted 13% of comments, with 23% showing deeper involvement Writing/Publishing accounted for 11% of comments, with 19% of this group indicating a strong connection Lastly, Software had a smaller representation, with 5% of comments and 9% from those more engaged.

Selected Topics in Orphan Works

1) 17 U.S.C § 412 a) 3% discussed 17 U.S.C § 412 explicitly, out of all comments

2) 17 U.S.C § 512 a) 3% discussed notice and takedown, out of all comments i) 1% discussed 17 U.S.C § 512 specifically, out of all comments

492 This includes those who primarily engage with orphan works through public education or discussion programs, but does not include academic libraries

493 This does not include writing or music

494 This does not include photography or movies ii) 2% discussed notice and takedown without addressing 17 U.S.C § 512 specifically, out of all comments

3) Termination of Transfer a) 5% discussed reversion of rights to the original creator, out of all comments i) 3% discussed termination of transfer specifically, out of all comments ii) 2% discussed reversion of rights to the original creator without addressing termination of transfer specifically, out of all comments

4) Metadata a) 11% discussed metadata, out of all comments

5) Fair Use a) 33% discussed fair use explicitly, out of all comments i) 3% stated that fair use does not resolve the orphan works problem, out of all comments ii) 20% stated that fair use solves some of the orphan works problem, out of all comments 495 iii) 10% stated that fair use solves all of the orphan works problem, out of all comments b) 10% stated that it does not resolve the orphan works problem, of those who addressed fair use explicitly c) 60% stated that it solves some of the orphan works problem, of those who addressed fair use explicitly 496 d) 30% stated that it solves all of the orphan works problem, of those who addressed fair use explicitly

6) Extended Collective Licensing a) 27% addressed ECL explicitly, out of all comments i) 10% favored ECL, out of all comments ii) 16% opposed ECL, out of all comments b) 38% favored ECL, out of those who addressed the issue explicitly c) 62% opposed ECL, out of those who addressed the issue explicitly

7) Berne/TRIPs a) 15% addressed international treaties explicitly, out of all comments i) 12% favored upholding our obligations under international treaties, out of all comments ii) 1% opposed upholding out obligations under international treaties, out of all comments iii) 2% did not clearly state an opinion but favored upholding our obligations under international treaties by implication, out of all comments

495 This does not include comments stating that it resolves all or comments stating that it resolves none of the orphan works problem

A survey revealed that 79% of respondents supported upholding obligations under international treaties regarding orphan works, while only 7% opposed it Additionally, 14% of participants did not explicitly state their opinion but implied support for maintaining these obligations Notably, comments that claimed to fully resolve or completely disregard the orphan works issue were excluded from this analysis.

8) Is there an orphan works problem? a) 68% addressed whether there is an orphan works problem directly, out of all comments i) 48% stated that there is an orphan works problem directly, out of all comments ii) 20% stated that there is not an orphan works problem directly, out of all comments b) 71% stated that there is an orphan works problem, out of those who addressed the issue directly c) 29% stated that there is not an orphan works problem, out of those who addressed the issue directly

9) Does the possible orphan works problem include mass digitization? a) 32% addressed whether mass digitization is part of the orphan works problem directly, out of all comments i) 22% stated that mass digitization is part of the orphan works problem, out of all comments ii) 10% stated that mass digitization is not part of the orphan works problem, out of all comments b) 70% stated that mass digitization is part of the orphan works problem, out of those who addressed the issue directly c) 31% stated that mass digitization is not part of the orphan works problem, out of those who addressed the issue directly

Proposed User Groups

1) Beneficiaries 497 a) 44% of all comments were beneficiaries b) 83% of all comments that explicitly favored limiting injunctive relief were beneficiaries i) 18% of all beneficiaries addressed injunctive relief explicitly

(1) 13% of all beneficiaries explicitly favored limiting injunctive relief

(2) 5% of all beneficiaries explicitly opposed limiting injunctive relief ii) 71% of beneficiaries who addressed injunctive relief explicitly favored limiting it

A significant portion of beneficiaries, specifically 29%, explicitly opposed limiting injunctive relief, while 73% of comments favoring the limitation of statutory damages and attorney’s fees came from beneficiaries Notably, 60% of beneficiaries addressed statutory damages and attorney’s fees, with unanimous support (100%) for limiting these damages among those who commented on the issue Additionally, 50% of comments advocating for a reduction in the term of protection for orphan works were from beneficiaries, with all beneficiaries who addressed this topic favoring the limitation Furthermore, 87% of comments opposing extended collective licensing were made by beneficiaries, with 45% directly addressing the issue of ECL.

(1) 33% of all beneficiaries explicitly opposed ECL

A significant portion of beneficiaries expressed their views on ECL, with only 13% explicitly favoring it In contrast, a notable 72% opposed ECL, while 28% showed support Additionally, among all comments made by individuals affiliated with academic institutions, libraries, or museums, 51% identified themselves as beneficiaries.

(1) 43% of those who stated an academic affiliation were beneficiaries

(2) 75% of those who stated a library affiliation were beneficiaries

(3) None of those who stated a museum affiliation were beneficiaries ii) 55% of all beneficiaries stated an Academic, Library, or Museum affiliation

(1) 25% of all beneficiaries stated an academic affiliation

Thirty percent of all beneficiaries reported a library affiliation, with 45% of this subset indicating an academic affiliation Additionally, 55% of these beneficiaries identified with a library affiliation Notably, 36% of comments related to Movies, Music, Photography, Visual Art, Writing/Publishing, or Software also came from beneficiaries.

(1) 50% of those who stated a movies affiliation were beneficiaries

(2) 38% of those who stated a music affiliation were beneficiaries

(3) 33% of those who stated a photography affiliation were beneficiaries

(4) 8% of those who stated a visual arts affiliation were beneficiaries

(5) 50% of those who stated a writing/publishing affiliation were beneficiaries

(6) 60% of those who stated a software affiliation were beneficiaries ii) 48% of all beneficiaries stated a Movies, Music, Photography, Visual Art, Writing/Publishing, or Software affiliation

(1) 8% of all beneficiaries stated a movies affiliation

(2) 8% of all beneficiaries stated a music affiliation

(3) 10% of all beneficiaries stated a photography affiliation

(4) 3% of all beneficiaries stated a visual arts affiliation

(5) 13% of all beneficiaries stated a writing/publishing affiliation

Among all beneficiaries surveyed, 8% reported a software affiliation, while 16% indicated an affiliation with movies, another 16% with music, and 21% with photography Additionally, 5% identified with visual arts, and 26% with writing and publishing Notably, 64% of comments regarding the orphan works issue came from beneficiaries, and 83% of all beneficiaries explicitly discussed the existence of an orphan works problem.

(1) 70% of all beneficiaries stated that there is an orphan works problem

A survey revealed that 13% of beneficiaries believe there is no issue with orphan works, while 85% acknowledged the existence of such a problem Among those who directly addressed the orphan works issue, 15% disagreed Additionally, 80% of comments identifying mass digitization as a contributing factor to the orphan works problem came from beneficiaries, and 50% of all beneficiaries specifically discussed the role of mass digitization in this context.

(1) 40% of all beneficiaries stated that mass digitization is part of the orphan works problem

A survey revealed that 80% of beneficiaries believe mass digitization is a significant aspect of the orphan works problem, while 10% disagree, asserting it is not related Additionally, 20% of those who addressed the issue explicitly stated that mass digitization does not contribute to the orphan works dilemma.

2) Benefactors 498 a) 15% of all comments were benefactors b) 42% of all comments that explicitly opposed limiting injunctive relief were benefactors i) 36% of all benefactors addressed injunctive relief explicitly ii) 100% of all benefactors who addressed injunctive relief explicitly opposed it

A significant portion of stakeholders, specifically 58%, opposed the limitation of statutory damages and attorney’s fees, highlighting concerns about the potential negative impact on orphan works Among these, 64% of benefactors explicitly addressed the issues surrounding statutory damages and attorney’s fees, emphasizing the need for a balanced approach that considers both the potential losses and benefits associated with orphan works.

(1) 50% of all benefactors explicitly opposed any limitation on statutory damages and attorney’s fees

A significant portion of benefactors expressed clear positions on various copyright issues: 14% supported some limitations on statutory damages and attorney’s fees, while a substantial 78% opposed any such limitations In terms of orphan works, 100% of comments against reducing the protection term came from benefactors, with 21% addressing this issue and all opposing any limitation Additionally, 11% of benefactors favored extended collective licensing (ECL), with 100% of those who explicitly discussed ECL supporting it Lastly, 9% of comments from individuals affiliated with academic, library, or museum sectors were also benefactors.

(1) 17% of all comments that stated an academic affiliation were benefactors

(2) 6% of all comments that stated a library affiliation were benefactors

(3) None of the comments that stated a museum affiliation were benefactors ii) 29% of all benefactors stated an Academic, Library, or Museum affiliation

(1) 21% of all benefactors stated an academic affiliation

Seven percent of all benefactors reported a connection to libraries, with 75% of this group indicating an academic affiliation Additionally, 25% of benefactors mentioned a library affiliation Notably, a quarter of the comments related to Movies, Music, Photography, Visual Art, Writing/Publishing, or Software also came from benefactors.

(1) None of the comments that stated a movies affiliation were benefactors

(2) 38% of all comments that stated a music affiliation were benefactors

(3) 8% of all comments that stated a photography affiliation were benefactors

(4) 67% of all comments that stated a visual arts affiliation were benefactors

(5) 10% of all comments that stated a writing/publishing affiliation were benefactors

(6) None of the comments that stated a software affiliation were benefactors ii) 93% of all benefactors stated a Movies, Music, Photography, Visual Art, Writing/Publishing, or Software affiliation

(1) 21% of all benefactors stated a music affiliation

(2) 7% of all benefactors stated a photography affiliation

(3) 57% of all benefactors stated a visual arts affiliation

Among all benefactors, 7% reported a writing or publishing affiliation, while 23% identified with music, 8% with photography, and a significant 62% with visual arts Additionally, 39% of comments indicating no issue with orphan works came from benefactors, and 79% of all benefactors specifically discussed the existence of an orphan works problem.

(1) 50% of all benefactors explicitly stated that there is no orphan works problem

A significant portion of benefactors have expressed varying opinions on the orphan works problem Specifically, 29% acknowledged its existence, while a notable 64% denied any issues related to orphan works Among those who commented, 36% confirmed the presence of the problem Additionally, 22% of all comments from benefactors indicated that mass digitization is not a factor in the orphan works issue, while 21% specifically addressed the relationship between mass digitization and orphan works.

(1) 14% of all benefactors explicitly stated that mass digitization is not part of the orphan works problem

A recent survey revealed that only 7% of benefactors consider mass digitization as a significant factor in the orphan works problem In contrast, a substantial 67% of respondents firmly believe that mass digitization does not contribute to this issue Meanwhile, 33% of benefactors acknowledged that mass digitization is indeed part of the orphan works dilemma.

Charts and Tree Graphs

Copyright Office Report

Figure 6: Copyright Office Report Keyword Chart

FREQUENCY % TOTAL TF / IDF FREQUENCY % TOTAL TF / IDF

Figure 7: Copyright Office Report Tree Graph

Figure 8: 2013 Initial Comments Keyword Chart

FREQUENCY NO CASES % CASES TF / IDF FREQUENCY NO CASES % CASES TF / IDF

Figure 9: 2013 Initial Comments Tree Graph