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[Fsfe-france] Orphan Works

From: Laurent GUERBY
Subject: [Fsfe-france] Orphan Works
Date: Thu, 02 Feb 2006 12:58:47 +0100

Un sujet malheureusement trop souvent oublié, allez on en parlera en
Europe dans 10 ans.


Judit Rius Sanjuan
[A2k] U.S. Copyright Office releases
the Orphan Works Report
Wed, 01 Feb 2006 18:40:23 -0800
(Thu, 03:40 CET)
Thunderbird 1.5 (Windows/20051201)

After months of public consultations, the U.S. Copyright Office has
released the Orphan Works Report, now available at:

The Berne Convention eliminated the formalities requirements (basically,
registration and publication with notice) and made copyright protection
automatic when an original and independent creation exists. One of the
consequences is a new type of copyrighted work: “Orphan Works”,
creations in principle protected by copyright law but whose owners may
be impossible to identify and locate.

The legal situation of these works creates uncertainty that is
discouraging its use, adaptation and public availability, therefore
restricting access to knowledge. Mainly because the potential users of
these works are not able to require permission to use them and/or to
know when the copyright protection expires, facing copyright liability

To solve this problem, several alternatives have been proposed and at
least one country, Canada, has adopted legislation that specifically
addresses orphan works, permitting the petition of a license to the
Canadian Copyright Board. More information about the Canadian approach
at: http://www.cb-cda.gc.ca/unlocatable/index-e.html

The Report that the U.S. Copyright Office has released recognizes these
concerns and includes legislative and policy recommendations. Its main
proposal is a legislative amendment that will limit the remedies
available when using orphan works if the user has performed a
“reasonable diligent search” for the copyright owner and has complied
with an “attribution requirement” to the author and copyright owner,
making clear that the work is the product of another author.

The proposed limited remedies are:

a) Monetary relief
Statutory damages and attorney's fees are eliminated when commercially
using an orphan work and users will only pay a "reasonable
compensation". No compensation is due for noncommercial uses and when
the user ceases the infringement upon notice of the copyright owner.

"Reasonable compensation" is not defined by the Copyright Office Report,
but it cites the Davis v. The Gap case and suggests that "reasonable
compensation would equal what a reasonable willing buyer and a
reasonable willing seller in the positions of the owner and user would
have agreed to at the time the use commenced, based predominantly by
reference to evidence of comparable market transactions."

b) Injunctive relief
Derivative works that use the orphan work in a work "with a significant
amount of the infringer's expression" added cannot be enjoined if
reasonable compensation is paid and attribution is given. All other uses
can be enjoined, but courts should always consider the harm that an
injunction might impose to the user, to protect user's reliance on the
orphan works provisions.

Judit Rius Sanjuan
judit.rius at cptech.org

Consumer Project on Technology
1621 Connecticut Ave, NW, Washington, DC 20009 USA
Tel.:  +1.202.332.2670, Ext 17 Fax: +1.202.332.2673

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