Recently, the United States Copyright Office issued a report regarding proposed changes to the Copyright Act in relation to Orphan Works and Mass Digitization. The term Orphan Works refers to works where the copyright owner cannot be identified or located. One of the main problems with Orphan Works is that it prevents a potential user of the work from seeking permission to use the work because it is unclear who to contact. This subjects a user of an Orphan Work to the risk that the previously unknown copyright owner will surface after the use has occurred and file a lawsuit for monetary damages against the user. The main proposed change to the Copyright Act is to introduce a limitation on user liability for those users who conduct a good faith diligent search for the identity of the copyright owner prior to using the work and have been unable to locate him or her. The limitation on user liability is proposed as a limit on the potential remedies that can be sought in a copyright infringement lawsuit and to limit monetary relief to “reasonable compensation,” which is likely to be comparable to a reasonable license fee. There is also a proposed bar on monetary relief for eligible nonprofit organizations. The proposed changes would apply to every category of copyrightable works, and all types of uses and users, with the exception of “fixations of works of visual art in or on commercial available useful articles.”
The term Mass Digitization “involves making reproductions of many works, as well as possible efforts to make the works publicly accessible.” The main problem with Mass Digitization is that it is very difficult to obtain permission due to the significant amount of individual permissions required, which is likely to cause the cost of securing permissions to exceed the value to the user. The proposal recommends that Congress create a five year pilot program where collective management organizations (“CMO”) are authorized to negotiate the terms of licenses under government supervision. The proposal also recommends that criteria for eligibility and oversight of the CMOs be implemented. The CMOs represent copyright owners in particular categories of works, such as literary works, pictorial or graphic works, and photographs. Basically, the proposed changes seek to establish organizations that are responsible for determining copyright ownership, obtaining permissions and negotiating compensation for Mass Digitization projects. Copyright owners are given the option to opt out from this program.
Currently there is no legislation pending before Congress, but the proposed changes, if implemented, could have a significant impact for those seeking to gain copyright protection or use copyrighted work. Our law firm will be monitoring the status of these proposed changes.
This morning Semrush.com published an interview with me regarding the recently proposed changes to the U.S. Copyright Act regarding Orphan Works and Mass Digitization. For more information please see http://www.semrush.com/blog/a-primer-on-proposed-changes-to-u-s-copyright-law-for-content-creators