It is astounding how many issues have been raised involving this topic. After reading through some of the information on www.orphanworks.net I would like to share a few things. I have learned about the legislation involved so far with Orphan Works and as our technology has advanced over the years it has been important to address these issues.
Here is what the Orphan Works Act of 2006 was about:
H.R. 5439 allowed for a limitation on remedies, i.e., no statutory damages or attorneys fees, to be imposed against the user of a copyrighted work if the following was true:
•The user undertook a reasonably diligent, good faith search to locate the owner and could not find him or her
•The user identified the owner as much as possible when using the work (such as listing the initials of the photographer if they were on the back of the original print)
•With an exception for ongoing uses, stopping use of the work if the owner reappears and says “stop”
•Paying back royalties for the use on a “willing seller, willing buyer” standard if the use was commercial in nature
As more and more uses of Orphan Works could happen over time it is important to consider the creation of databases of owners and users. This would aid in the search for owners, and once an owner is found a use database would allow compensation. There should be some sort of restrictions about all these issues as well. Also, who would fund and create these databases that would benefit the use of Orphan Works?
The OrphanWorks.net website gives a very good overview of issues and gives specific examples. I especially liked the section on how the work would be used. One question was:
Should uses only be allowed of the same type of us as the original (photograph to photographic reprint, but not text pattern to shower curtain)?
There are definitely a lot of issues and details to be worked out involving Orphan Works. If we do not figure out good, somewhat concrete laws to deal with this either these Orphan Works will be used however people want to use them or they will not be used at all because possible users will be afraid of consequences.
Who should be in charge of all of these issues? Should it be the Copyright Office of the United States? What about international issues?
In my opinion, it seems that the legislation over the Orphan Works issue has been to get to a point where if an owner was found after the work was already used, the owner and user would go through normal negotiations as though the work had not been used yet. There should be restrictions both for the use of the work and the future negotiations if the owner appears after the fact.
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1 comment:
I really liked this post. I think that of the requirements you listed "The user undertook a reasonably diligent, good faith search to locate the owner and could not find him or her" is the most intriguing. You mention the lack of concrete laws concerning orphan works, and I think that this point is an example of that. Who decides what is a "reasonably diligent, good faith search?" Not concrete at all. I also liked your example of the outside website. My only issue is that I would have preferred it be a hyperlink since this is a blog format, but overall really liked this post.
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