1. Orphan Works From Legislation to Private Ordering Paul D. Callister, JD, MSLIS Director of the Leon E. Bloch Law Libraries & Associate Professor of Law © 2008, Paul D. Callister. Some rights reserved. See http://creativecommons.org/licenses/by- nc-sa/3.0/us/ http://creativecommons.org/licenses/by- nc-sa/3.0/us/

2. Uploaded by Bob Bobster to flickr from Library of Congress

3. Source: Peter B. Hirtle, Copyright Term and the Public Domain in the United States, 1 January 2009, available at http://www.copyright.cornell. edu/resources/publicdomain.cfm. Licensed under Creative Commons License 3.0 at http://www.copyright.cornell. edu/resources/publicdomain.cfm http://www.copyright.cornell. edu/resources/publicdomain.cfm http://creativecommons.org/l icenses/by-nc/3.0/http://creativecommons.org/l icenses/by-nc/3.0/. http://creativecommons.org/l icenses/by-nc/3.0/

4. Orphan works From Wikipedia, the free encyclopedia Jump to: navigation, search navigationsearchnavigationsearch An orphan work is a copyright work where it is difficult or impossible to contact the copyright holder. This situation can arise for many reasons. The author could have never been publicly known because the work was published anonymously or the work may have never been traditionally published at all. The identity of the author could have been once known but the information lost over time. Even if the author is known, it may not be possible to determine who inherited the copyright and presently owns it. Nearly any work where a reasonable effort to locate the current copyright owner fails can be considered orphaned. However the designation is often used loosely and in some jurisdictions there is no legal definition at all. copyright holdercopyright holder

5. The name "orphan works" refers to "works not available in the marketplace at a reasonable price." 151 Cong. Rec. H2114 (daily ed. Apr. 19, 2005) (Statement of Rep. Berman). Cited in 2-8 Nimmer on Copyright § 8.03, n.122.18. 2-8 Nimmer on Copyright § 8.03 2-8 Nimmer on Copyright § 8.03

6. http://odeo.com/episodes/23547051-Against-Orphan-Work-reform

8. H.R. 5439 H.R. 5439 Orphan Works Act of 2006 H.R. 5439 Goes too far Goes too far o For owners of work from 1978 to today – unfair because relying on “opt out,” “non- formality” system (how do you fix if you are an owner?) o For owners of foreign works o For owners of unpublished Doesn’t go far enough – problems of mushy “reasonably diligent search” Doesn’t go far enough – problems of mushy “reasonably diligent search” o Permanent employment act for lawyers o Permanent cost for libraries and institutions o Permanent uncertainty for users

9. S.2913S.2913 & H.R.5889 110 th Congress (2008) H.R.5889 S.2913H.R.5889 Limited damages for infringement to reasonable compensation Limited damages for infringement to reasonable compensation For libraries and non-profits, simply required that institution cease infringement For libraries and non-profits, simply required that institution cease infringement Conducted a “qualifying search” using a “diligent effort” Conducted a “qualifying search” using a “diligent effort” H.R. 5899 (Orphan Works Act of 2009) S.2913 (Bentley Orphan Works Act) “Reasonable and diligent”Search Copyright Office Records “Best practices” as determined by Registrar of Copyrights Search reasonably available resources Timing proximate to infringementUse appropriate technology, printed publications and “internal or external expert assistance.” Use appropriate databases

10. S.2913S.2913 & H.R.5889 110 th Congress (2008) H.R.5889 S.2913H.R.5889 Limited damages for infringement to reasonable compensation Limited damages for infringement to reasonable compensation For libraries and non-profits, simply required that institution cease infringement For libraries and non-profits, simply required that institution cease infringement Conducted a “qualifying search” using a “diligent effort” Conducted a “qualifying search” using a “diligent effort” No waiver of duty to search if no “identifying information” No waiver of duty to search if no “identifying information” “Notice Use” Archive “Notice Use” Archive Database of Pictorial, Graphic and Sculptural Works Database of Pictorial, Graphic and Sculptural Works

11. Sarah Glazer, Future of Books: Will Traditional Print Books Disappear, 19 CQ R ESEARCHER, M AY 29, 2009, available at CQ Research Plus Archive.

12. The End