The U.S. Copyright Office today released Orphan Works and Mass Digitization: A Report of the Register of Copyrights. The Report documents the legal and business challenges faced by good faith users who seek to use orphan works and/or engage in mass digitization projects. It provides a series of legislative recommendations that offer users a way forward out of gridlock, but also take into account the legitimate concerns and exclusive rights of authors and other copyright owners.
The Copyright Office has long held the view, which it reiterates in the Report, that too many valuable projects are forestalled because users can neither locate the rightsholders nor protect themselves or their licensees from ongoing exposure to liability. Similarly, recent litigation has highlighted a gap in the law regarding how to fully facilitate mass digitization projects that are in the public’s interest without undermining the rights of copyright owners, including the right to be fairly compensated.
With respect to orphan works, the Report provides draft legislation that draws upon the Shawn Bentley Orphan Works Act passed by the Senate seven years ago, albeit with some updates and changes that reflect intervening developments and public discussions.
With respect to mass digitization, the Report recommends a more incremental approach that would allow the United States to gain experience with an extended collective licensing framework that is in use or under consideration elsewhere in the world. The Office suggests a “pilot program” that would enable users to digitize and provide access to certain works for research and education purposes under conditions to be agreed upon between rightsholder and user representatives. To assist it in developing appropriate legislation, the Office is issuing a Notice of Inquiry contemporaneously with the Report, inviting public comment on various issues concerning the scope and administration of such a program.
The full report is available at HERE.