united states copyright office

Orphan Works and Mass Digitization
 

a report of the register of copyrights june 2015 
united states copyright office 

Orphan Works and Mass Digitization
 

a report of the register of copyrights june 2015 
 

 

 

 

 

 

 

 

U.S. Copyright Office Orphan Works and Mass Digitization 

ACKNOWLEDGMENTS
 

This Report reflects the dedication and expertise of the Office of Policy and International Affairs 

at the U.S. Copyright Office. Karyn Temple Claggett, Associate Register of Copyrights and 

Director of Policy and International Affairs, managed the overall study process, including 

coordination of the public comments and roundtable hearings, analysis, drafting, and 

recommendations. I am also extremely grateful to Senior Counsel Kevin Amer and AttorneyAdvisor Chris Weston (Office of the General Counsel), who served as the principal authors of the 

Report and made numerous important contributions throughout the study process. 

Senior Advisor to the Register Catie Rowland and Attorney-Advisor Frank Muller played a 

significant role during the early stages of the study, providing research, drafting, and 

coordination of the public roundtable discussions. In addition, Ms. Rowland and Maria Strong, 

Deputy Director of Policy and International Affairs, reviewed a draft of the Report and provided 

important insights. Barbara A. Ringer Fellows Michelle Choe and Donald Stevens provided 

helpful research and analysis for several sections of the Report. Senior Counsel Kimberley Isbell, 

Counsels Brad Greenberg and Aurelia Schultz, Attorney-Advisors Katie Alvarez and Aaron 

Watson, and Law Clerk Konstantia Katsouli contributed valuable research and citation assistance. 

Finally, I would like to thank the many interested parties who participated in the public 

roundtables and submitted written comments to the Office. The wide range of perspectives and 

thoughtful analyses we received during the public comment period were an essential part of the 

development of our final recommendations. 

Maria A. Pallante 

Register of Copyrights and Director 

U.S. Copyright Office 
 

 

 

 

U.S. Copyright Office	 Orphan Works and Mass Digitization 

TABLE OF CONTENTS 

EXECUTIVE SUMMARY..........................................................................................................1
 

I. OVERVIEW AND BACKGROUND ..............................................................................8
 

A. Prior Orphan Works Study and Proposed Legislation.........................................9
 

1. 2006 Report on Orphan Works ..........................................................................9
 

2. 2006 and 2008 Proposed Legislation...............................................................11
 

B. Subsequent Legal Developments...........................................................................13
 

1. Google Books Litigation ...................................................................................13
 

2. HathiTrust Litigation ........................................................................................17
 

C. International Experiences .......................................................................................18
 

1. The Nordic Model: Extended Collective Licensing ......................................18
 

2. European Union: Two-Pronged Approach....................................................19
 

a. Orphan Works Directive............................................................................19
 

b. Memorandum of Understanding..............................................................22
 

3. Hungary..............................................................................................................23
 

4. France ..................................................................................................................25
 

5. Germany .............................................................................................................27
 

6. United Kingdom................................................................................................28
 

7. Canada ................................................................................................................30
 

8. Japan....................................................................................................................31
 

9. Korea ...................................................................................................................32
 

D. Updated Copyright Office Review........................................................................33
 

1. Mass Digitization Discussion Document .......................................................33
 

2. Current Study.....................................................................................................34
 

II. ORPHAN WORKS .........................................................................................................34
 

A. Consequences of Orphan Works ..........................................................................34
 

B. Solutions to the Orphan Works Problem..............................................................39
 

1. No Legislative Change......................................................................................40
 

a. Role of Fair Use ...........................................................................................40
 

b. Best Practices................................................................................................44
 

2. Exception-Based Model ....................................................................................47
 

3. Government License Model and Small Claims .............................................48
 

4. Extended Collective Licensing.........................................................................49
 

5.	 LȷȻȷɂȯɂȷȽȼ Ƚȼ LȷȯȰȷȺȷɂɇ MȽȲȳȺʖ Tȶȳ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ 

Recommendation.............................................................................................50
 

a. Applicability to All Categories of Works ................................................51
 

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b. Applicability to All Types of Uses and Users .........................................54
 

c. Eligibility for Limitations on Remedies ...................................................56
 

i.	 Conditions ..........................................................................................56
 

ii.	 Good Faith Diligent Search..............................................................56
 

1) Qualifying Searches....................................................................56
 

2) Judicial Consideration of Qualified Foreign Searches...........58
 

3) Recommended Practices ............................................................59
 

4) Qualifying Third-Party Databases ...........................................60
 

iii.	 Notice of Use......................................................................................60
 

iv.	 Notice of Claim of Infringement .....................................................62
 

d. Limitation on Remedies .............................................................................63
 

i.	 MȽȼȳɂȯɀɇ RȳȺȷȳȴʖ ȃRȳȯɁȽȼȯȰȺȳ CȽȻȾȳȼɁȯɂȷȽȼȄ.............................63
 

ii.	 ȃSȯȴȳ HȯɀȰȽɀȄ ȴȽɀ Cȳɀɂȯȷȼ NȽȼȾɀȽȴȷɂ IȼɁɂȷɂɃɂȷȽȼɁ and Uses .......64
 

iii.	 Effect of Registration on Monetary Damages ...............................66
 

iv.	 Injunctive Relief.................................................................................67
 

v.	 Injunctive Relief: Limitations Regarding State Actors.................69
 

e. Relationship to Other Provisions of Title 17 ...........................................70
 

i.	 Fair Use Savings Clause ...................................................................70
 

ii.	 Preservation of Statutory Licenses..................................................71
 

iii.	 Copyright for Derivative Works and Compilations.....................71
 

f. Report to Congress......................................................................................71
 

III. MASS DIGITIZATION ..................................................................................................72
 

A. Overview...................................................................................................................72
 

B. Non-Legislative Solutions.......................................................................................76
 

1. Mass Digitization as Fair Use ..........................................................................76
 

2. Voluntary Agreements .....................................................................................79
 

C. Extended Collective Licensing ...............................................................................82
 

1. Types of Works and Publication Status..........................................................84
 

a. Literary Works.............................................................................................85
 

b. Embedded Pictorial or Graphic Works....................................................87
 

c. Photographs.................................................................................................88
 

2. Types of Users and Uses...................................................................................89
 

3. CMO Authorization Requirements.................................................................90
 

4. Opt-Out Provisions ...........................................................................................93
 

5. Determination of License Terms .....................................................................94
 

6. Security Measures..............................................................................................98
 

7. Distribution of Royalties...................................................................................98
 

8. Fair Use Savings Clause..................................................................................101
 

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9. Sunset ................................................................................................................102
 

10. Treaty Considerations.....................................................................................102
 

11. Notice of Inquiry..............................................................................................104
 

12. Summary...........................................................................................................104
 

IV. CONCLUSION .............................................................................................................105
 

APPENDICES 

Appendix A: Orphan Works Legislation Discussion Draft and Section-by-Section Analysis 

Appendix B: Federal Register Notices 

Appendix C: Commenting Parties and Roundtable Participants 

Appendix D: Comparative Summaries of U.S. Orphan Works Legislative Proposals 

Appendix E: Comparative Summary of Select Orphan Works Provisions 

Appendix F: Comparative Summary of Select Extended Collective Licensing Provisions 

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U.S. Copyright Office Orphan Works and Mass Digitization 

EXECUTIVE SUMMARY 

As the Supreme Court reaffirmed in 2012, facilitating the dissemination of creative 

expression is ȯȼ ȷȻȾȽɀɂȯȼɂ ȻȳȯȼɁ Ƚȴ ȴɃȺȴȷȺȺȷȼȵ ɂȶȳ ȱȽȼɁɂȷɂɃɂȷȽȼȯȺ ȻȯȼȲȯɂȳ ɂȽ ȃȾɀȽȻȽɂȳ ɂȶȳ 

PɀȽȵɀȳɁɁ Ƚȴ SȱȷȳȼȱȳȄ ɂȶɀȽɃȵȶ ɂȶȳ ȱȽȾɇɀȷȵȶɂ ɁɇɁɂȳȻʔ1 This Report addresses two circumstances in 

which the accomplishment of that goal may be hindered under the current law due to practical 

obstacles preventing good faith actors from securing permission to make productive uses of 

copyrighted ɅȽɀȹɁʔ FȷɀɁɂʕ Ʌȷɂȶ ɀȳɁȾȳȱɂ ɂȽ ȽɀȾȶȯȼ ɅȽɀȹɁʕ ɀȳȴȳɀɀȳȲ ɂȽ ȯɁ ȃȾȳɀȶȯȾɁ the single 

ȵɀȳȯɂȳɁɂ ȷȻȾȳȲȷȻȳȼɂ ɂȽ ȱɀȳȯɂȷȼȵ ȼȳɅ ɅȽɀȹɁʕȄ2 ȯ ɃɁȳɀȂɁ ȯȰȷȺȷɂɇ ɂo seek permission or to negotiate 

licensing terms is compromised by the fact that, despite his or her diligent efforts, the user cannot 

identify or locate the copyright owner. Second, in the case of mass digitization – which involves 

making reproductions of many works, as well as possible efforts to make the works publicly 

accessible – obtaining permission is essentially impossible, not necessarily because of a lack of 

identifying information or the inability to contact the copyright owner, but because of the sheer 

number of individual permissions required. 

The U.S. Copyright Office previously examined the topics of orphan works and mass 

digitization in separate publications issued in 2006 and 2011, respectively. The Office noted the 

broad impact of both issues on the copyright system, discussed various potential responses, and, 

Ʌȷɂȶ ɀȳɁȾȳȱɂ ɂȽ ȽɀȾȶȯȼ ɅȽɀȹɁʕ ȾɀȽȾȽɁȳȲ ȯ ȺȳȵȷɁȺȯɂȷɄȳ ɁȽȺɃɂȷȽȼʔ FȽȺȺȽɅȷȼȵ ɂȶȳ OȴȴȷȱȳȂɁ ȷȼȷɂȷȯȺ 

orphan works report, the House and the Senate Judiciary Committees considered the problem of 

orphan works in some depth in 2006 and 2008, holding multiple hearings and introducing 

ȻɃȺɂȷȾȺȳ ȰȷȺȺɁʕ Ʌȶȷȱȶʕ ȱȽȼɁȷɁɂȳȼɂ Ʌȷɂȶ ɂȶȳ OȴȴȷȱȳȂɁ ɀȳȱȽȻȻȳȼȲȯɂȷȽȼʕ ɅȽɃȺȲ ȶȯɄȳ ɀȳȲɃȱȳȲ ɂȶȳ 

exposure of a good faith user provided he or she searched for but failed to locate the relevant 

copyright owner(s). The House Judiciary Committee also considered mass digitization issues in 

2009 and 2014, albeit in much less depth.3 

1 Golan v. Holder, 132 S. Ct. 873, 887-88 (2012) (quoting U.S. CONST. art. I, § 8, cl. 8). 

2 Preservation and Reuse of Copyrighted Works: Hearing Before the Subcomm. on Courts, Intellectual Property, & the 

Internet of the H. Comm. on the Judiciary, 113th Cong. 81 (2014) (statement of Michael C. Donaldson, IntȂl 

Documentary AɁɁȂȼ ȯȼȲ FȷȺȻ IȼȲȳȾȳȼȲȳȼɂʡʗ see also IAN HARGREAVES, DIGITAL OPPORTUNITY: A REVIEW OF 

INTELLECTUAL PROPERTY AND GROWTH 38 (2011), available at 

http://webarchive.nationalarchives.gov.uk/20140603093549/http://www.ipo.gov.uk/ipreviewfinalreport.pdf (describing orphan works as ȃɂȶȳ ɁɂȯɀȹȳɁɂ ȴȯȷȺɃɀȳ Ƚȴ ɂȶȳ ȱȽȾɇɀȷȵȶɂ ȴɀȯȻȳɅȽɀȹ ɂȽ ȯȲȯȾɂȄʡ. 

3 See Preservation and Reuse of Copyrighted Works, supra note 2; Competition and Commerce in Digital Books: 

Hearing Before the H. Comm. on the Judiciary, 111th Cong. (2009). 

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U.S. Copyright Office Orphan Works and Mass Digitization 

While the fundamental aspects of orphan works and mass digitization have remained 

unchanged Ɂȷȼȱȳ ɂȶȳ OȴȴȷȱȳȂɁ ȾɀȷȽɀ reviews, a number of important domestic and international 

developments have affected the legal landscape. In the United States, it is difficult to separate the 

issue of mass digitization from two lawsuits arising out of the Google Books project, in which 

authors and book publishers have asserted violations of their exclusive rights and Google and 

libraries have asserted fair use.4 Recent decisions in these cases have magnified the public debate 

surrounding the costs and benefits arising from digitization projects more generally, and how 

best to license, except, or otherwise regulate them under the law. 

Meanwhile, a growing number of countries have adopted legislative responses to both 

orphan works and mass digitization, ranging from calibrated exceptions to government licenses 

to extended collective licensing. And, private entities have developed innovative new copyright 

information registries and other resources to more efficiently bring rightsholders together with 

those seeking to use their works. 

These combined developments – all of which will have substantial ramifications for U.S. 

copyright stakeholders – strongly suggest that it is time to revisit potential solutions in the United 

States. The goal in doing so is not to interfere with jurisprudence, but rather to ensure that the 

rules are clear and that all parties are on equal footing. Indeed, with so many equities at stake, 

the complexity and breadth of the issues make them well suited for legislative action.5 While the 

Office has addressed these issues together in this Report, we recommend separate solutions. 

Orphan Works 

The OȴȴȷȱȳȂɁ current review of orphan works focuses on the challenges that users face 

when attempting to make use of individual works on a case-by-case basis. The Office concludes, 

as it did previously, that the orphan works problem is widespread and significant. As a broad 

spectrum of participants in this study noted, anyone using an orphan work does so under a legal 

cloud, as there is always the possibility that the copyright owner could emerge after the use has 

ȱȽȻȻȳȼȱȳȲ ȯȼȲ Ɂȳȳȹ ɁɃȰɁɂȯȼɂȷȯȺ ȷȼȴɀȷȼȵȳȻȳȼɂ ȲȯȻȯȵȳɁʕ ȯȼ ȷȼȸɃȼȱɂȷȽȼʕ ȯȼȲ/Ƚɀ ȯɂɂȽɀȼȳɇɁȂ ȴȳȳɁʔ 

While some users certainly may have viable defenses on fair use or other grounds, many will 

choose to forego use of the work entirely rather than risk the prospect of expensive litigation. 

4 The book publishers settled their claims against Google in 2012. The terms are confidential. 

5 See Authors Guild v. Google, Inc. (Google Iʡʕ ȂȂ˻ Fʔ SɃȾȾʔ ˽Ȳ ȁȁȁʕ ȁȂȂ ʠSʔDʔNʔYʔ ˽˻˼˼ʡ ʠȃTȶȳ ȿɃȳɁɂȷȽȼɁ Ƚȴ ɅȶȽ 

should be entrusted with guardianship over orphan books, under what terms, and with what safeguards 

are matters more appropriately decided by Congress than through an agreement among private, selfȷȼɂȳɀȳɁɂȳȲ ȾȯɀɂȷȳɁʔȄʡʔ 

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U.S. Copyright Office	 Orphan Works and Mass Digitization 

The Copyright Office continues to believe that this uncertainty and the gridlock it 

produces do not serve the goals of the copyright system. This Report explores the relevant legal 

and business issues and a number of potential solutions. For instances other than mass 

digitization, the Office recommends a framework in which liability is limited for a user who 

conducts a good faith diligent search for the copyright owner, and favors the kind of legislation 

set out in the Shawn Bentley Orphan Works Act passed by the Senate in 2008. 

Although the Office is recommending a legislative framework that would limit good faith 

ȽɀȾȶȯȼ ɅȽɀȹɁ ɃɁȳɀɁȂ ȺȳȵȯȺ ȺȷȯȰȷȺȷɂɇʕ ȷɂ ȯȺɁȽ ȳxamined other potential approaches. For example, 

some stakeholders recommended against comprehensive legislation in this area in favor of 

reliance on fair use. While current judicial trends may make fair use appear attractive to some 

user groups at the present moment, the Office found that, in additional to lacking the certainty of 

specific legislation, a fair use-only approach does little to encourage users to search diligently for 

copyright owners. That said, users should always have the choice of relying upon fair use in 

appropriate circumstances, and therefore the Office explicitly preserved that option in the draft 

legislation. 

The Office also considered a variety of foreign models, such as enacting an orphan works 

exception or creating a government-run licensing program. Unlike fair use, both of these 

approaches would require a good faith diligent search for the copyright owner, but in practice 

they tend to be either rarely used or extremely limited in terms of the scope of users and uses 

covered. For these reasons, the Office determined that a limited liability model, on the whole, 

provides the most comprehensive and well-calibrated approach for the United States. 

A limitation on liability addresses the needs of both commercial and noncommercial 

actors alike, and appropriately takes into account global developments. It has the benefit of 

providing considerable legal certainty to those users who want or need it for certain projects, 

while being fully compatible with fair use. In sum, the proposed orphan works legislative 

framework would do the following: 

	 Establish a limitation on remedies for copyright infringement for eligible users who can 

prove they have engaged in a good faith diligent search for the owner of a copyright and 

have been unable to identify or locate him or her; 

	 Define a diligent search as, at a minimum, searching Copyright Office records; searching 

sources of copyright authorship, ownership, and licensing; using technology tools; and 

using databases, all as reasonable and appropriate under the circumstances; 

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	 Require the Copyright Office to maintain and update Recommended Practices for diligent 

searches for various categories of works, through public consultation with interested 

stakeholders; 

	 Permit a U.S. court, in its determination of whether a particular search qualifies under the 

ɁɂȯɂɃɂȳʕ ɂȽ ɂȯȹȳ ȷȼɂȽ ȯȱȱȽɃȼɂ ȯ ȴȽɀȳȷȵȼ ȸɃɀȷɁȲȷȱɂȷȽȼȂɁ ȱȳɀɂȷȴȷȱȯɂȷȽȼ ɂȶȯɂ ȯ Ɂȳȯɀȱȶ ɅȯɁ ȷȼ ȵȽȽȲ 

faith and sufficiently diligent, provided the foreign jurisdiction provides similar treatment 

to qualifying U.S. searches; 

	 In addition to a diligent search, condition eligibility on a user filing of a Notice of Use with 

the Copyright Office, providing appropriate attribution, and engaging in negotiation for 

reasonable compensation with copyright owners who file a Notice of Claim of 

Infringement, among other requirements; 

	 Limit monetary relief for infringement of an orphan work by an eligible user to 

ȃɀȳȯɁȽȼȯȰȺȳ ȱȽȻȾȳȼɁȯɂȷȽȼȄ – the amount that a willing buyer and a willing seller would 

have agreed upon immediately before the use began; 

	 Bar monetary relief for infringements of orphan works by eligible nonprofit educational 

institutions, museums, libraries, archives, or public broadcasters, for noncommercial 

educational, religious, or charitable purposes, provided the eligible entity promptly ceases 

the infringing use; 

	 Condition injunctive relief for infringement of orphan works by accounting for any harm 

the relief would cause the infringer due to its reliance on its eligibility for limitations on 

remedies; 

	 Limit the scope of injunctions against the infringement of an orphan work if it is combined 

Ʌȷɂȶ ȃɁȷȵȼȷȴȷȱȯȼɂ ȽɀȷȵȷȼȯȺ ȳɆȾɀȳɁɁȷȽȼȄ ȷȼɂȽ ȯ ȼȳɅ ɅȽɀȹʕ ȾɀȽɄȷȲȳȲ ɂȶȳ ȷȼȴɀȷȼȵȳɀ ȾȯɇɁ 

reasonable compensation for past and future uses and provides attribution; 

	 Allow a court to impose injunctive relief for the interpolation of an orphan work into a 

new derivative work, provided the harm to the owner-author is reputational in nature and 

not otherwise compensable; 

	 Condition the ability of state actors to enjoy limitations on injunctive relief upon their 

payment of any agreed-upon or court-ordered reasonable compensation; and 

	 Explicitly preserve the ability of users to assert fair use for uses of orphan works. 

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The Office has included draft statutory language reflecting the aforementioned framework 

in the Appendices.6 

Mass Digitization 

In the case of mass digitization, the issue is not so much a lack of information as it is a lack 

of efficiency in the licensing marketplace. For a digitization project involving hundreds, 

thousands, or millions of copyrighted works, the costs of securing ex ante permissions from every 

rightsholder individually often will exceed the value of the use to the user. This would be true 

even if every relevant copyright owner could be identified and located. Thus, even where a 

library or other repository agrees that a use requires permission and would be willing to pay for a 

license (e.g., to offer online access to a particular collection of copyrighted works), the burdens of 

rights clearance may effectively prevent it from doing so. To the extent that providing such 

access could serve valuable informational or educational purposes, this outcome is difficult to 

reconcile with the public interest. At the same time, there is too much at stake to allow such use 

to occur without appropriate legal clarity. Tȶȳ ȾȽɂȳȼɂȷȯȺ ȶȯɀȻ ɂȽ ȯ ȱȽȾɇɀȷȵȶɂ ȽɅȼȳɀȂɁ ȺȳȵȯȺ ɀȷȵȶɂɁ 

and economic investments, both immediately and throughout the course of the copyright term, is 

both serious and real. 

In analyzing potential solutions, the Copyright Office considered both the short-term and 

long-term impact on the copyright system. A number of options proposed by stakeholders – 

including reliance on fair use, voluntary licensing, and industry memoranda of understanding – 

would not involve new legislation. We agree that these can facilitate certain narrow digitization 

projects up to a point, but have concluded that they likely cannot provide a comprehensive 

solution. While courts have found some mass digitization projects to be protected by fair use in 

certain compelling but narrowly focused sets of circumstances, it is unlikely that fair use will ever 

yield the kind of broad use of full-text works that some would like to see in the online 

environment. On the contrary, that kind of use almost certainly would need to rest on licensing. 

Yet, users are unlikely to be able to clear rights on a case-by-case basis for the full range of works 

and copyright interests that are implicated by a mass digitization project, not only because of 

volume but also because there will always be gaps between the licenses that are available and the 

licenses that are needed to complete the undertaking. It has thus become clear that some type of 

collective licensing mechanism would be beneficial for the copyright system as a whole. 

To encourage further dialogue among stakeholders, and to assist Congress, the Copyright 

Office has proposed in this Report a statutory framework known as extended collective licensing 

6 See Appendix A. 

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(ȃECLȄ), which can be used to authorize projects on terms set forth by the parties under 

government supervision. Under this model, licenses are issued and administered by collective 

management organizations (ȃCMOȄs) representing copyright owners in particular categories of 

works.7 CMOs would be authorized by the Copyright Office to issue licenses for mass 

digitization projects and to collect royalties on behalf of both members and non-members of the 

organizations, based on transparent formulas and accounting practices. All rightsholders would 

have the right to opt out, and procedures for doing so would be clear and unencumbered. The 

framework thus would seek to eliminate the practical impediments to mass digitization by 

creating a centralized, market-based mechanism for the clearance of rights and the compensation 

of copyright owners. It also recognizes that no licensing entity has or will ever have the full 

portfolio of rights that are implicated by mass digitization projects. 

We acknowledge that several participants in this review opposed the adoption of ECL on 

various grounds. Some contended that the administrative burdens of such a system would 

outweigh the benefit to stakeholders. Others noted that the United States lacks extensive 

experience with collective rights management, and argued that existing U.S. CMOs are not 

equipped to manage licenses on the scale that would be required. These are legitimate concerns 

that reflect the existing landscape, and they indicate that the timing and implementation of ECL 

requires ongoing deliberation. 

At the same time, we believe it significant that governments around the world are 

increasingly turning to ECL as a way to address mass digitization issues similar to those facing 

the United States; in fact, France, Germany, and the United Kingdom all have implemented forms 

of ECL since the Copyright Office last examined the issue in 2011. Furthermore, it should be 

noted that in at least one U.S. sector – literary works – several parties already worked together in 

2008 and 2009 to develop a regime that would closely resemble ECL through the attempted 

settlement of the Google Books class action. That precedent would seem to suggest a willingness 

on the part of some stakeholder groups to negotiate mass digitization licenses under an ECL 

program, and to develop the collective structures necessary to participate in such a system.8 We 

7 CMOs are membership organizations through which rightsholders can license their works on a collective 

basis under mutually agreed terms and conditions. Examples in the United States include ASCAP, BMI, 

and SESAC for the licensing of public performance rights in musical works. 

8 Indeed, the Google Books settlement demonsɂɀȯɂȳȲ ɂȶȯɂ ȃɀȷȵȶɂɁ ȶȽȺȲȳɀɁ ȯȼȲ ɀȷȵȶɂɁ ɃɁȳɀɁ ȯɀȳ ȱȯȾȯȰȺȳ Ƚȴ 

coming to the table and arriv[ing] at a solution which serves the interests of all stakeholders and also 

ȾɀȽȻȽɂȳɁ ɂȶȳ ȵȽȯȺɁ Ƚȴ ȱȽȾɇɀȷȵȶɂ ȺȯɅʔȄ AɃɂȶȽɀɁ GɃȷȺȲʕ Iȼȱʔʕ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ to U.S. 

CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ FȳȰʔ ˼˻ʕ ˽˻˼˿ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ Ȅ ʠɃȼȲȯɂȳȲʡ ʠȃAɃɂȶȽɀɁ GɃȷȺȲ AȲȲȷɂȷȽȼȯȺ CȽȻȻȳȼɂɁȄʡʔ 

In the Statement of Interest it filed in the case, the United States raised concerns about the settlement 

primarily because it would have bestowed the benefits of mass digitization on only one party, not because 

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U.S. Copyright Office Orphan Works and Mass Digitization 

also note that for photographs, the use of a framework like ECL may be innovative; it would 

provide a cost-effective means of obtaining permission and allow terms to be renegotiated over 

time as appropriate. 

The Copyright Office accordingly is proposing ȯ ȼȯɀɀȽɅ ȃȾȷȺȽɂ ȾɀȽȵɀȯȻȄ ɂȶȯɂ ɅȽɃȺȲ 

create a limited ECL framework for three categories of copyrighted works: (1) literary works; (2) 

pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to literary 

works; and (3) photographs. The framework would allow copyright owners in those categories to 

form a CMO and seek authorization from the Office to issue extended collective licenses for 

certain mass digitization activities, or to seek such authorization through an existing CMO. To 

receive authorization, a CMO would have to demonstrate, among other requirements, that it 

represents a significant portion of rightsholders in a particular field and that a substantial 

percentage of its membership has consented to the application. FȽȺȺȽɅȷȼȵ ȯ CMOȂɁ 

authorization, users would be able to take advantage of applicable licenses, which would govern 

uses for all works in the defined category. Importantly, this process would be voluntary for both 

rightsholders and users. Should ȯ CMOȂɁ ȻȳȻȰȳɀɁȶȷȾ ȱȽȼȱȺɃȲȳ ɂȶȯɂ ɂȶȳ ȱȽɁɂɁ Ƚȴ ȯȲȻȷȼȷɁɂȳɀȷȼȵ 

extended collective licenses would outweigh the benefits to rightsholders, the CMO could elect 

not to seek ECL authorization, and it would remain ȴɀȳȳ ɂȽ ȺȷȱȳȼɁȳ ȷɂɁ ȻȳȻȰȳɀɁȂ ɅȽɀȹɁ ȯɁ ɃȼȲȳɀ 

current law. Likewise, users would remain free to seek out direct licenses or to rely on fair use, as 

would be explicitly acknowledged in the pilot program statute. 

The Office recommends that specific legislation to establish this program be developed 

through further consultation with stakeholders. Such input is critical, we believe, given that the 

proposed system is premised on voluntary participation. To begin this dialogue, the Office is 

issuing along with this Report a Notice of Inquiry requesting public comment on various issues 

concerning the scope and administration of an ECL program. The Office will then seek to 

facilitate further discussion through stakeholder meetings and, if necessary, additional requests 

for written comment. Based on this input, the Office will draft a formal legislative proposal 

creating an ECL pilot program ȴȽɀ CȽȼȵɀȳɁɁȂɁ ȱȽȼɁȷȲȳɀȯɂȷȽȼʔ 

While the Office will seek public comment on specific statutory provisions, we believe that 

any ECL pilot should include certain general elements. The legislation should: 

of any fundamental concern about the functioning or legitimacy of an appropriately structured ECL 

program more generally. See Statement of Interest of United States of America Regarding Proposed 

Amended Settlement Agreement at 2, Authors Guild, Inc. v. Google Inc., No. 05 Civ. 8136 (S.D.N.Y. Feb. 4, 

˽˻˼˻ʡʕ ECF NȽʔ Ȅ˽˽ ʠȃUʔSʔ SɂȯɂȳȻȳȼɂ Ƚȴ IȼɂȳɀȳɁɂȄʡ. 

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U.S. Copyright Office	 Orphan Works and Mass Digitization 

	 Permit the Register of Copyrights to authorize CMOs meeting specified criteria to issue 

licenses on behalf of both members and non-members of the organization to allow the use 

of copyrighted works implicated by the creation or operation of a digital collection; 

	 Apply only to the three categories of works noted above, with possible additional 

ȺȷȻȷɂȯɂȷȽȼɁ ȰȯɁȳȲ Ƚȼ ɅȽɀȹɁȂ ȱȽȻȻȳɀȱȷȯȺ ȯɄȯȷȺȯȰȷȺȷɂɇ Ƚɀ Ȳȯɂȳ Ƚȴ ȾɃȰȺȷȱȯɂȷȽȼ; 

	 Give copyright owners the right to limit the grant of licenses with respect to their works or 

to opt out of the system entirely; 

	 Permit the licensed works to be used only for nonprofit educational or research purposes 

and without any purpose of direct or indirect commercial advantage; 

	 Establish eligibility requirements for a CMO seeking ECL authorization, including 

evidence demonstrating its level of representation among authors in the relevant field, the 

consent of its membership to the ECL proposal, and its adherence to standards of 

transparency, accountability, and good governance; 

	 Provide for the negotiation of license rates and terms between the CMO and a prospective 

user, subject to a dispute resolution process; 

	 Require the parties to negotiate terms obligating the user, as a condition of its license, to 

implement and maintain reasonable digital security measures controlling access to the 

relevant works; 

	 Require the CMO to collect and distribute royalties to rightsholders within a specified 

period and to conduct diligent searches for non-members for whom it has collected 

payments; 

	 Provide for the disposition of royalties remaining unclaimed after a specified period; 

	 Include a provision expressly preserving the ability of users to assert fair use in connection 

with mass digitization projects; and 

	 SɃȼɁȳɂ ȴȷɄȳ ɇȳȯɀɁ ȯȴɂȳɀ ɂȶȳ ȺȳȵȷɁȺȯɂȷȽȼȂɁ ȳȴȴȳȱɂȷɄȳ Ȳȯɂȳʔ 

I.	 OVERVIEW AND BACKGROUND 

The Copyright Office has long been concerned with the problem of orphan works and has 

considered a variety of possible solutions. Followiȼȵ ɂȶȳ OȴȴȷȱȳȂɁ ˽˻˻ȁ Report and 

recommendations on the topic, Congress held two years of hearings and came close in 2008 to 

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U.S. Copyright Office Orphan Works and Mass Digitization 

enacting provisions that would have allowed for use on a case-by-case basis. Since that time, 

several developments in the United States and overseas have underscored the continuing 

importance of the issue, while also highlighting the growing significance of orphan works in the 

context of mass digitization. In particular, litigation over the Google Books project and the 

adoption of new licensing regimes to facilitate similar projects overseas have prompted extensive 

discussion over the opportunities and challenges presented by mass digitization in the United 

States. 

A. Prior Orphan Works Study and Proposed Legislation 

1. 2006 Report on Orphan Works 

The Copyright Office published its first Report on Orphan Works in January 2006 after 

conducting a comprehensive analysis of the issues and soliciting public input.9 In the Report, the 

Oȴȴȷȱȳ ȲȳȴȷȼȳȲ ȯȼ ȃȽɀȾȶȯȼ ɅȽɀȹȄ ȯɁ ȯȼɇ ȽɀȷȵȷȼȯȺ ɅȽɀȹ Ƚȴ ȯɃthorship for which a good faith 

prospective user cannot readily identify and/or locate the copyright owner(s) in a situation where 

permission from the copyright owner(s) is necessary as a matter of law.10 The Report documented 

the experiences of users unable to find copyright owners, the kinds of works at issue, and the 

kinds of projects that may be forestalled. The Office cited public comments indicating that the 

problem of orphan works affects a broad cross-section of stakeholders, including members of the 

general public, archives, publishers, and filmmakers.11 For many such users, the Office 

ȲȳɂȳɀȻȷȼȳȲʕ ȃthe risk of liability for copyright infringement, however remote, is enough to 

ȾɀȽȻȾɂ ɂȶȳȻ ȼȽɂ ɂȽ Ȼȯȹȳ ɃɁȳ Ƚȴ ʢȯȼ ȽɀȾȶȯȼʣ ɅȽɀȹȄ – ȯȼ ȽɃɂȱȽȻȳ ɂȶȯɂ ȃȷɁ ȼȽɂ ȷn the public 

interest, particularly where the copyright owner is not locatable because he no longer exists or 

ȽɂȶȳɀɅȷɁȳ ȲȽȳɁ ȼȽɂ ȱȯɀȳ ɂȽ ɀȳɁɂɀȯȷȼ ɂȶȳ ɃɁȳ Ƚȴ ȶȷɁ ɅȽɀȹʔȄ12 

9 See U.S. COPYRIGHT OFFICE, REPORT ON ORPHAN WORKS (2006), available at 

http://copyright.gov/orphan/orphan-report-ȴɃȺȺʔȾȲȴ ʠȃ˽˻˻ȁ REPORTȄʡʔ AȲȲȷɂȷȽȼȯȺ ȷȼȴȽɀȻȯɂȷȽȼ Ƚȼ ɂȶȳ 

OȴȴȷȱȳȂɁ ˽˻˻Ȁ-2006 study is available at http://www.copyright.gov/orphan/. 

10 See id. at 1; see also David R. Hansen, Orphan Works: Mapping the Possible Solution Spaces 17 (Berkeley 

Digital Library Copyright Project, White Paper No. 2, 2012) (attached at Appendix A of Berkeley Digital 

LȷȰɀȯɀɇ CȽȾɇɀȷȵȶɂ PɀȽȸȳȱɂʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ 

NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ʠFȳȰʔ ˿ʕ ˽˻˼˾ʡ ʠȃBȳɀȹȳȺȳɇ DȷȵȷɂȯȺ LȷȰɀȯɀɇ CȽȾɇɀȷȵȶɂ PɀȽȸȳȱɂ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡʡ (analyzing 

ȷɁɁɃȳɁ ɀȳȺȯɂȷȼȵ ɂȽ Ȳȳȴȷȼȷȼȵ ɂȶȳ ɂȳɀȻ ȃȽɀȾȶȯȼ ɅȽɀȹɁȄʡʔ 

11 2006 REPORT, supra note 9, at 36-40. 

12 Id. at 1. 

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U.S. Copyright Office Orphan Works and Mass Digitization 

The Report noted that the orphan works problem was exacerbated by a series of changes 

in U.S. copyright law over the past thirty-plus years.13 Those changes gradually but steadily 

relaxed the obligations of copyright owners to assert and manage their rights and removed 

formalities in the law that had provided users with readily accessible copyright information. 

Significant among those changes were the elimination of the registration and notice requirements, 

which resulted in less accurate and incomplete identifying information on works, and the 

automatic renewal of copyrighted works that were registered before the effective date of the 1976 

Copyright Act.14 

Subsequent amendments, such as the Sonny Bono Copyright Term Extension Act of 1998, 

extended the duration of copyright and thus increased the likelihood that some copyright owners 

would become unlocatable.15 The Copyright Office has long asserted that Congress amended the 

law for sound reasons, primarily to protect authors from technical traps in the law and to ensure 

U.S. compliance with international conventions.16 HȽɅȳɄȳɀʕ ȃɂȶȳ ȼȳɂ ɀȳɁɃȺɂ of these amendments 

ȶȯɁ Ȱȳȳȼ ɂȶȯɂ ȻȽɀȳ ȯȼȲ ȻȽɀȳ ȱȽȾɇɀȷȵȶɂ ȽɅȼȳɀɁ Ȼȯɇ ȵȽ ȻȷɁɁȷȼȵʔȄ17 

13 Id. at 41-44. 

14 See Copyright Act of 1976, Pub. L. No. 94-553, § 408(a), 90 Stat. 2541, 2580 (codified as amended at 17 

U.S.C. § 408(a)) (making registration permissive); Berne Convention Implementation Act of 1988, Pub. L. 

No. 100-568, § 7(a)-(b), 102 Stat. 2853, 2857-58 (codified at 17 U.S.C. §§ 401(a), 402(a)) (making notice 

permissive); Copyright Amendments Act of 1992, Pub. L. No. 102-307, § 102(a), 106 Stat. 264, 264 (codified 

as amended at 17 U.S.C. § 304(a)) (adding automatic renewal term for works in their first term on January 1, 

1978). 

15 Pub. L. No. 105-298, 112 Stat. 2827. 

16 Marybeth Peters, The Importance of Orphan Works Legislation, U.S. COPYRIGHT OFFICE (Sept. 25, 2008), 

http://www.copyright.gov/orphan/OWLegislation/. With the 1976 Act, the United States took several 

important steps toward assuming a more prominent role in the international copyright community. These 

changes harmonized U.S. copyright law with prevailing international copyright norms and moved the U.S. 

closer to compliance with the Berne Convention. See Berne Convention for the Protection of Literary and 

Artistic Works art. 5(2), Sept. 9, 1886, as revised July 24, 1971, and as amended Sept. 28, 1979, 102 Stat. 2853, 

˼˼ȁ˼ UʔNʔTʔSʔ ˾ ʠȃBȳɀȼȳ CȽȼɄȳȼɂȷȽȼȄʡ ʠȃTȶȳ ȳȼȸȽɇȻȳȼɂ ȯȼȲ ɂȶȳ ȳɆȳɀȱȷɁȳ Ƚȴ ɂȶȳɁȳ ɀȷȵȶɂɁ ɁȶȯȺȺ ȼȽɂ Ȱȳ ɁɃȰȸȳȱɂ 

to any formality . . . ʔȄʡʔ BȳɀȼȳȂɁ ȃȼȽ ȴȽɀȻȯȺȷɂȷȳɁȄ ɀȳȿɃȷɀȳȻȳȼɂ ȶȯɁ Ȱȳȳȼ ȴȽȺȺȽɅȳȲ Ȱɇ ɁȳɄȳɀȯȺ ȻȽȲȳɀȼ ɂɀȳȯɂȷȳɁ 

addressing copyright. See WTO Agreement on Trade-Related Aspects of Intellectual Property Rights art. 

9.1, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 33 I.L.M. 

ȃ˼ ʠ˼ȄȄ˿ʡ ʠȃTRIPS AȵɀȳȳȻȳȼɂȄʡʗ WIPO CȽȾɇɀȷȵȶɂ Tɀȳȯɂɇ ȯɀɂʔ ˾ʕ Dȳȱʔ ˽˻ʕ ˼ȄȄȁʕ ˾ȁ IʔLʔMʔ ȁȀ ʠȃWCTȄʡʗ WIPO 

PȳɀȴȽɀȻȯȼȱȳɁ ȯȼȲ PȶȽȼȽȵɀȯȻɁ Tɀȳȯɂɇ ȯɀɂʔ ˽˻ʕ Dȳȱʔ ˽˻ʕ ˼ȄȄȁʕ ˾ȁ IʔLʔMʔ Ȃȁ ʠȃWPPTȄʡʗ WIPO Bȳȷȸȷȼȵ Tɀȳȯɂɇ Ƚȼ 

Audiovisual Performances art. 17, June 24, 2012, WIPO Doc. AVP/DC/20. 

17 Peters, supra note 16. 

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U.S. Copyright Office Orphan Works and Mass Digitization 

While noting that the orphan works issue potentially affects all kinds of works, the Report 

observed that a significant percentage of the problem, if not the majority, involves orphan 

photographs. Photographs are particularly challenging because they frequently lack or may 

become divorced from ownership information; that is, no label or caption is affixed to the 

photographs themselves. As a result, the Report explained, potential users of photographic 

works often lack the most basic information with which to discern a search path, let alone 

ownership.18 

After reviewing a number of possible legislative solutions, the Office recommended that 

Congress amend the Copyright Act to limit the remedies available against good faith users of 

ȽɀȾȶȯȼ ɅȽɀȹɁ Ʌȶȳɀȳ ɂȶȳ ɃɁȳɀ ȶȯȲ ȾȳɀȴȽɀȻȳȲ ȯ ȃɀȳȯɁȽȼȯȰȺɇ ȲȷȺȷȵȳȼɂ ɁȳȯɀȱȶȄ ȴȽɀ ɂȶȳ ȱȽȾɇɀȷȵȶɂ 

owner, and conditional upon the user providing attribution to the author and owner of the work 

wherever possible.19 The Office did not at this early stage recommend specific statutory or 

regulatory guidelines for determining a ɀȳȯɁȽȼȯȰȺɇ ȲȷȺȷȵȳȼɂ Ɂȳȯɀȱȶʕ ȰɃɂ ȃȴȯɄȽɀʢȳȲʣ ɂȶȳ 

ȲȳɄȳȺȽȾȻȳȼɂ Ƚȴ ȵɃȷȲȳȺȷȼȳɁ Ƚɀ ȳɄȳȼ ȰȷȼȲȷȼȵ ȱɀȷɂȳɀȷȯȄ Ȱɇ users and stakeholders.20 If a user 

satisfied the statutory requirements, the Office recommended that remedies be limited to 

ȷȼȸɃȼȱɂȷɄȳ ɀȳȺȷȳȴ ȯȼȲ ȃɀȳȯɁȽȼȯȰȺȳ ȱȽȻȾȳȼɁȯɂȷȽȼȄ ȴȽɀ ɂȶȳ ɃɁȳ Ƚȴ ɂȶȳ ɅȽɀȹʔ21 The Office also 

ɀȳȱȽȻȻȳȼȲȳȲ ȯ ȃɂȯȹȳ-ȲȽɅȼȄ ȽȾɂȷȽȼ ȴȽɀ ȱȳɀɂȯȷȼ ȼȽȼȱȽȻȻȳɀȱȷȯȺ ɃɁȳɀɁ ȳȼȵȯȵȳȲ ȷn noncommercial 

activities.22 

2. 2006 and 2008 Proposed Legislation 

Both the 109th and the 110th Congresses considered the orphan works problem, in each 

ȱȯɁȳ ȷȼɂɀȽȲɃȱȷȼȵ ȺȳȵȷɁȺȯɂȷȽȼ ɂȶȯɂ ȰɃȷȺɂ ɃȾȽȼ Ȼȯȼɇ Ƚȴ ɂȶȳ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ ɀȳȱȽȻȻȳȼȲations.23 

The proposed legislation in both cases would have: (1) limited remedies available under the 

Copyright Act when a user is unable to locate the rightsholder after conducting a good faith 

18 2006 REPORT, supra note 9, at 23-25. 

19 See id. at 93-122. 

20 Id. at 108. 

21 Id. at 115-21. 

22 Id. at 118-19. 

23 Proposed bills included the Shawn Bentley Orphan Works Act of 2008, S. 2913, 110th Cong. (2008); the 

Orphan Works Act of 2008, H.R. 5889, 110th Cong. (2008); and the Orphan Works Act of 2006, H.R. 5439, 

109th Cong. (2006). For a comparison of these bills, as well as our current proposal, see the charts attached 

as Appendix D. 

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U.S. Copyright Office Orphan Works and Mass Digitization 

reasonably diligent search; (2) been applicable on a case-by-case basis, meaning that users could 

not assume that an orphan work would retain its orphan status indefinitely; and (3) permitted the 

copyright owner or other rightsholder later to collect reasonable compensation from the user, but 

not statutory damages Ƚɀ ȯɂɂȽɀȼȳɇɁȂ ȴȳȳɁʔ Iȼ Ƚɂȶȳɀ ɅȽɀȲɁʕ ɂȶȳ ȾɀȽȾȽɁȳȲ ȺȳȵȷɁȺȯɂȷȽȼ ȲȷȲ ȼȽɂ ȱɀȳȯɂȳ 

an exception or limitation of general applicability, but rather placed a limitation on the remedies 

that might be imposed in a particular circumstance with respect to a particular user. 

Congress came very close to adopting orphan works legislation in 2008, but ultimately did 

not do so before adjourning. Orphan works bills were introduced in both the House and Senate, 

and the Senate passed its version, the Shawn Bentley Orphan Works Act of 2008, by unanimous 

consent.24 That bill would have limited remedies where the infringer had performed and 

documented a good faith reasonably diligent search before using the work; the infringing use of 

the work provided attribution to the copyright owner, if known; and the infringing user included 

an appropriate symbol or notice in association with any public distribution, display, or use of the 

work.25 The legislation also would have required any search to use methods and resources that 

are reasonable and appropriate under the circumstances, including a search of Copyright Office 

records not available online and resources for which a charge or subscription may be imposed.26 

In addition, it would have directed the Register of Copyrights to maintain and make available 

statement(s) of Recommended Practices for conducting and documenting searches for various 

categories of copyright-protected works.27 

Provided that a user conducted and documented a reasonably diligent search, only 

ȃɀȳȯɁȽȼȯȰȺȳ ȱȽȻȾȳȼɁȯɂȷȽȼȄ ȴȽɀ ɂȶȳ ɃɁȳ Ƚȴ ɂȶȳ ȷȼȴɀȷȼȵȳȲ ɅȽɀȹ ɅȽɃȺȲ ȶȯɄȳ Ȱȳȳȼ ȯɄȯȷȺȯȰȺȳʔ28 An 

exception, however, would have applied where the infringer was a nonprofit educational 

institution, museum, library, archives, or public broadcasting entity. No monetary relief could be 

assessed against such a user if the infringement was performed without any purpose of 

commercial advantage and was primarily educational, religious, or charitable in nature, and the 

infringer promptly ceased the infringement after receiving notice of the claim.29 The bill also 

24 S. 2913; see 154 CONG. REC. S9867 (daily ed. Sept. 26, 2008), available at 

https://www.congress.gov/crec/2008/09/26/CREC-2008-09-26-pt1-PgS9867-3.pdf. 

25 S. 2913 sec. 2, § 514(b)(1)(A). 

26 Id. § 514(b)(2)(A). 

27 Id. § 514(b)(2)(B)(i). 

28 Id. § 514(c)(1). 

29 Id. § 514(c)(1)(B). 

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would have allowed injunctive relief to prevent or restrain infringement, except where the 

infringing user added a significant amount of original expression to any use being made of the 

orphan work, paid reasonable compensation for the use, and provided attribution to the legal 

owner of the work if requested.30 

B. Subsequent Legal Developments 

As the discussions over potential solutions to individual uses of orphan works progressed, 

two high-profile lawsuits in the United States implicated similar copyright-clearance issues in the 

ȰɀȽȯȲȳɀ ȱȽȼɂȳɆɂ Ƚȴ ȻȯɁɁ ȲȷȵȷɂȷɈȯɂȷȽȼʔ Eȯȱȶ Ƚȴ ɂȶȳɁȳ ȱȯɁȳɁ ȯɀȽɁȳ ȽɃɂ Ƚȴ GȽȽȵȺȳȂɁ ȯȵɀȳȳȻȳȼɂɁ Ʌȷɂȶ 

various research libraries to electronically scan the books in their collections. 

1. Google Books Litigation 

In 2004, Google began an ambitious project to digitize millions of books held by several 

major libraries, including many books still protected by copyright.31 AɁ Ⱦȯɀɂ Ƚȴ ɂȶȷɁ ȃGȽȽȵȺȳ 

BȽȽȹɁȄ ȾɀȽȸȳȱɂʕ GȽȽȵȺȳ ȾɀȽɄȷȲȳȲ ȲȷȵȷɂȯȺ ȱȽȾȷȳɁ Ƚȴ ɂȶȳ ɁȱȯȼȼȳȲ ȰȽȽȹɁ ɂȽ Ⱦȯɀɂȼȳɀ libraries and made 

ɂȳɆɂ Ƚȴ ɂȶȳ ȰȽȽȹɁ ȯɄȯȷȺȯȰȺȳ ȴȽɀ ȽȼȺȷȼȳ Ɂȳȯɀȱȶȷȼȵʔ UɁȳɀɁ Ʌȳɀȳ ȾȳɀȻȷɂɂȳȲ ɂȽ ɄȷȳɅ ȃɁȼȷȾȾȳɂɁȄ Ƚȴ 

scanned books that were still protected by copyright and to download full copies of books that 

were in the public domain.32 Google did not obtain prior permission from the authors or 

publishers of the books. In September 2005, the Authors Guild and a group of authors filed a 

class action lawsuit in the Southern District of New York, asserting that the Google Books project 

amounted to willful copyright infringement. Several publishers filed a related action against 

Google in the same court later that year.33 

30 Id. § 514(c)(2)(B). The bill also would have directed the Register of Copyrights to undertake a process to 

certify that databases are available that facilitate searching for pictorial, graphic, and sculptural works 

protected by copyright. Id. Ɂȳȱʔ ˾ʔ Tȶȳ ȺȳȵȷɁȺȯɂȷȽȼȂɁ ȳȴȴȳȱɂȷɄȳ Ȳȯɂȳ ɅȽɃȺȲ ȶȯɄȳ Ȱȳȳȼ ȲȳȺȯɇȳȲ ɃȼɂȷȺ ɂȶȳ 

Copyright Office published a notice in the Federal Register that it had certified the existence of at least two 

such databases. Id. sec. 2(c)(1)(A)(ii)(I). 

31 See, e.g., About Google Books, GOOGLE, http://books.google.com/intl/en/googlebooks/about/. 

32 A ȃɁȼȷȾȾȳɂȄ ɅȯɁ ȯȼ ȳɆȱȳɀȾɂ ȱȽȼɁȷɁɂȷȼȵ Ƚȴ Ƚȼȳ-eighth of a page. Google implemented security measures to 

limit the portion of any book accessible through snippet views, including generating only three snippets in 

ɀȳɁȾȽȼɁȳ ɂȽ ȯȼɇ ȵȷɄȳȼ Ɂȳȯɀȱȶ ȿɃȳɀɇ ȯȼȲ ȃȰȺȯȱȹȺȷɁɂȷȼȵȄ ʠi.e., making unavailable) certain snippets and entire 

pages. See Authors Guild, Inc. v. Google, Inc. (Google II), 954 F. Supp. 2d 282, 286-87 (S.D.N.Y. 2013). 

33 For a detailed discussion of the background of the case, see Google I, 770 F. Supp. 2d 666. Several 

associations of photographers and other visual artists filed a separate action challenging the Google Books 

program in April 2010. That case was settled in September 2014. See PɀȳɁɁ RȳȺȳȯɁȳʕ NȯɂȂȺ PɀȳɁɁ 

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In October 2008, the authors, publishers, and Google reached a settlement agreement, 

which they filed for approval with the court pursuant to Federal Rule of Civil Procedure 23. After 

a large number of objections from various individual authors, stakeholder groups, and foreign 

governments, the parties filed an amended settlement agreement in November 2009. Under the 

amended settlement, Google could scan, digitize, and exploit out-of-print books through a 

number of new business arrangements unless the relevant copyright owner opted out. These 

business arrangements included online access, use of the books in subscription databases, and use 

of advertisements in connection with these services. The settlement also proposed to establish a 

ȃBȽȽȹ RȷȵȶɂɁ RȳȵȷɁɂɀɇȄ ɂȶȯɂ ɅȽɃȺȲ Ȼȯȷȼɂȯȷȼ ȯ ȲȯɂȯȰȯɁȳ Ƚȴ ɀȷȵȶɂɁȶȽȺȲȳɀɁ ȯȼȲ ȯȲȻȷȼȷɁɂȳɀ 

distribution of revenues from exploitation of the scanned books. Google would provide 

payments to the Registry on behalf of rightsholders and, in turn, the Registry would distribute the 

funds to registered rightsholders.34 If no rightsholder came forward to claim the funds after a 

certain amount of time, the funds could be used to cover the expense of searching for copyright 

owners or be donated to literacy-based charities.35 

Mȯȼɇ ȱȽȻȻȳȼɂȳɀɁ ȶȷȵȶȺȷȵȶɂȳȲ ɂȶȳ ɁȳɂɂȺȳȻȳȼɂȂɁ ɁȷȻȷȺȯɀȷɂɇ ɂȽ ȯȼ ECL ɁɇɁɂȳȻʕ36 though the 

main difference was the fact that the settlement would inure to the benefit of just one user and 

operate effectively as a court-sanctioned competitive advantage.37 The United States filed a 

PȶȽɂȽȵɀȯȾȶȳɀɁ AɁɁȂȼʕ GȽȽȵȺȳʕ PȶȽɂȽȵɀȯȾȶȳɀɁ SȳɂɂȺȳ LȷɂȷȵȯɂȷȽȼ OɄȳɀ BȽȽȹɁ ʠSȳȾɂʔ Ȁʕ ˽˻˼˿ʡʕ available at 

https://nppa.org/news/google-photographers-settle-litigation-over-books. 

34 The amended settlement agreement covered photographs and other pictorial works contained in books 

only where a party holding a copyright interest in the image also held a copyright interest in the book. See 

Am. Settlement Agreement §§ 1.13, 1.75, Authors Guild, Inc. v. Google Inc., No. 05 Civ. 8136 (S.D.N.Y. Nov. 

˼˾ʕ ˽˻˻Ȅʡʕ ECF NȽʔ ȂȂ˻ʕ EɆȶȷȰȷɂ ˼ ʠȃGȽȽȵȺȳ BȽȽȹɁ AȻʔ SȳɂɂȺȳȻȳȼɂȄʡʗ id.ʕ AɂɂȯȱȶȻȳȼɂ N ȯɂ ˿ ʠȃʢTʣȶȳ AȻȳȼȲȳȲ 

Settlement only authorizes Google to display the pictorial images in such Books if a U.S. copyright owner of 

ɂȶȳ ȾȷȱɂȽɀȷȯȺ ȷȻȯȵȳ ȯȺɁȽ ȷɁ ȯ RȷȵȶɂɁȶȽȺȲȳɀ Ƚȴ ɂȶȳ BȽȽȹʔȄʡʔ A ȃCȽȾɇɀȷȵȶɂ IȼɂȳɀȳɁɂȄ ɅȯɁ ȲȳȴȷȼȳȲ ɂȽ ȷȼȱȺɃȲȳ ȯȼ 

exclusive license, id. § 1.41, and therefore the agreement apparently would have permitted Google to 

display illustrations that had been exclusively licensed to the copyright owner of the book in which they 

appear. 

35 See Google I, 770 F. Supp. 2d at 671-72; Google Books Am. Settlement, supra note 34, § 6.3(a)(i)(3). 

36 See, e.g., Pamela Samuelson, The Google Book Settlement as Copyright Reform, 2011 WIS. L. REV. 479, 519 n.192 

ʠ˽˻˼˼ʡ ʠȃAȾȾɀȽɄȯȺ Ƚȴ ɂȶȳ ʔ ʔ ʔ ɁȳɂɂȺȳȻȳȼɂ ɅȽɃȺȲʕ ȷȼ ȳȴȴȳȱɂʕ ȶȯɄȳ ȱɀȳȯɂȳȲ ȯȼ ȳɆɂȳȼȲȳȲ ȱȽȺȺȳȱɂȷɄȳ ȺȷȱȳȼɁȳ ȯȹȷȼ ɂȽ 

ɂȶȽɁȳ ȯȲȽȾɂȳȲ ȷȼ ɁȽȻȳ NȽɀȲȷȱ ȱȽɃȼɂɀȷȳɁʔȄʡʔ 

37 See Google I, 770 F. Supp. 2d at 678-ȂȄ ʠȃTȶȳ ʢȯȻȳȼded settlement] would grant Google control over the 

ȲȷȵȷɂȯȺ ȱȽȻȻȳɀȱȷȯȺȷɈȯɂȷȽȼ Ƚȴ ȻȷȺȺȷȽȼɁ Ƚȴ ȰȽȽȹɁʕ ȷȼȱȺɃȲȷȼȵ ȽɀȾȶȯȼ ȰȽȽȹɁ ȯȼȲ Ƚɂȶȳɀ ɃȼȱȺȯȷȻȳȲ ɅȽɀȹɁʔȄʡʗ U.S. 

Statement of Interest, supra note 8, ȯɂ ˽ ʠȃUȼȲȳɀ ɂȶȳ ʢȯȻȳȼȲȳȲ ɁȳɂɂȺȳȻȳȼɂʣ ȯɁ ȾɀȽȾȽɁȳȲʕ GȽȽȵȺȳ ɅȽɃld 

remain the only competitor in the digital marketplace with the rights to distribute and otherwise exploit a 

ɄȯɁɂ ȯɀɀȯɇ Ƚȴ ɅȽɀȹɁ ȷȼ ȻɃȺɂȷȾȺȳ ȴȽɀȻȯɂɁʔȄʡʔ Tȶȳ ɁȳɂɂȺȳȻȳȼɂ ȲȷȲ ȷȼȱȺɃȲȳ ȾɀȽɄȷɁȷȽȼɁ ȱȽȼɂȳȻȾȺȯɂȷȼȵ ɃɁȳ Ƚȴ ɂȶȳ 

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SɂȯɂȳȻȳȼɂ Ƚȴ IȼɂȳɀȳɁɂʕ ȯȱȹȼȽɅȺȳȲȵȷȼȵ ɂȶȳ ȃɅȽɀɂȶɇ ȽȰȸȳȱɂȷɄȳɁȄ Ƚȴ ȱɀȳȯɂȷȼȵ such a licensing 

framework, but noting that even as amended, the agrȳȳȻȳȼɂ ɅȽɃȺȲ ȃȱȽȼȴȳɀ Ɂȷȵȼȷȴȷȱȯȼɂ ȯȼȲ 

possibly anticompetitive advantages on a single entity – GȽȽȵȺȳʔȄ38 

In March 2011, Judge Denny Chin rejected the amended settlement agreement.39 The court 

ɀȳȱȽȵȼȷɈȳȲ ɂȶȯɂ ȃɂȶȳ ȰȳȼȳȴȷɂɁ Ƚȴ GȽȽȵȺȳȂɁ ȰȽȽȹ ȾɀȽȸȳȱɂ ȯɀȳ ȻȯȼɇʕȄ ȷȼȱȺɃȲȷȼȵ Ȼȯȹȷȼȵ ȰȽȽȹɁ ȻȽɀȳ 

ȯȱȱȳɁɁȷȰȺȳ ɂȽ ȃʢȺʣȷȰɀȯɀȷȳɁʕ ɁȱȶȽȽȺɁʕ ɀȳɁȳȯɀȱȶȳɀɁʕ ȯȼȲ ȲȷɁȯȲɄȯȼɂȯȵȳȲ ȾȽȾɃȺȯɂȷȽȼɁʕȄ ȴȯȱȷȺȷɂȯɂȷȼȵ ȯȱȱȳɁɁ 

for persons with disabilities, generating new audiences and sources of income for authors and 

publishers, and preserving olȲȳɀ ȰȽȽȹɁ ȱɃɀɀȳȼɂȺɇ ȃȴȯȺȺȷȼȵ ȯȾȯɀɂ ȰɃɀȷȳȲ ȷȼ ȺȷȰɀȯɀɇ ɁɂȯȱȹɁʔȄ40 

Nevertheless, the court determined that the proposed settlement would inappropriately 

implement a forward-looking business arrangement granting Google significant rights to exploit 

entire books without permission from copyright owners, while releasing claims beyond those 

presented in the dispute.41 Tȶȳ ȱȽɃɀɂ ȯȺɁȽ ȳɆȾɀȳɁɁȳȲ ȱȽȼȱȳɀȼ ȽɄȳɀ ɂȶȳ ɁȳɂɂȺȳȻȳȼɂȂɁ ɂɀȳȯɂȻȳȼɂ Ƚȴ 

ȽɀȾȶȯȼ ɅȽɀȹɁʕ ȱȽȼȱȺɃȲȷȼȵ ɂȶȯɂ ɂȶȳ ȃȿɃȳɁɂȷȽȼɁ Ƚȴ ɅȶȽ ɁȶȽɃȺȲ Ȱȳ ȳȼɂɀɃɁɂȳȲ Ʌȷɂȶ ȵɃȯrdianship 

over orphan books, under what terms, and with what safeguards, are matters more appropriately 

decided by Congress than through an agreement among private, self-ȷȼɂȳɀȳɁɂȳȲ ȾȯɀɂȷȳɁʔȄ42 Citing 

Supreme Court precedent, the court also affirmed that it ȷɁ ȃCȽȼȵɀȳɁɁȂɁ ɀȳɁȾȽȼɁȷȰȷȺȷɂɇ ɂȽ ȯȲȯȾɂ ɂȶȳ 

ȱȽȾɇɀȷȵȶɂ ȺȯɅɁ ȷȼ ɀȳɁȾȽȼɁȳ ɂȽ ȱȶȯȼȵȳɁ ȷȼ ɂȳȱȶȼȽȺȽȵɇʔȄ43 Finally, the court found that the 

settlement agreement would raise international concerns ȯȼȲ ɂȶȯɂ ȴȽɀ ɂȶȯɂ ɀȳȯɁȽȼ ȯɁ ɅȳȺȺʕ ȃɂȶȳ 

matter is better left for CȽȼȵɀȳɁɁʔȄ44 

digital corpus by Google competitors, ȰɃɂ ȯɁ ɂȶȳ ȱȽɃɀɂ ȼȽɂȳȲʕ ɁɃȱȶ ɃɁȳɁ ɅȽɃȺȲ ȶȯɄȳ ɀȳȿɃȷɀȳȲ GȽȽȵȺȳȂɁ 

consent. See Google I, 770 F. Supp. 2d at 682-83. 

38 U.S. Statement of Interest, supra note 8, at 1-2. 

39 See Google I, 770 F. Supp. 2d 666. 

40 Id. at 670. The U.S. Department of Justice likewise recognized such benefits. See U.S. Statement of 

Interest, supra note 8, ȯɂ ˼ ʠȃBɀȳȯɂȶȷȼȵ Ⱥȷȴȳ ȷȼɂȽ ȻȷȺȺȷȽȼɁ Ƚȴ ɅȽɀȹɁ ɂȶȯɂ ȯɀȳ ȼȽɅ ȳȴȴȳȱɂȷɄȳȺɇ ȲȽɀȻȯȼɂʕ ȯȺȺȽɅȷȼȵ 

users to search the text of millions of books at no cost, creating a rights registry, and enhancing the 

ȯȱȱȳɁɁȷȰȷȺȷɂɇ Ƚȴ ɁɃȱȶ ɅȽɀȹɁ ȴȽɀ ɂȶȳ ȲȷɁȯȰȺȳȲ ȯȼȲ ȽɂȶȳɀɁ ȯɀȳ ȯȺȺ ɅȽɀɂȶɇ ȽȰȸȳȱɂȷɄȳɁʔȄʡʔ 

41 Google I, 770 F. Supp. 2d at 677. 

42 Id.
 

43 Id. (citing Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429, 430-31 (1984)).
 

44 Id. at 678.
 

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In October 2012, the five major publisher plaintiffs settled with Google. According to 

public statements about the settlement, the publisher plaintiffs will be permitted to choose 

whether or not to include digitized books in the Google Books project.45 Further details of the 

settlement have not been made public. Notably, the settlement does not require formal court 

approval because it only resolves the claims of the specific publisher plaintiffs. The settlement 

does not affect claims made by the Authors Guild or non-parties to the lawsuit.46 Therefore, the 

settlement would not address orphan works in which copyrights are owned by anyone other than 

the publisher plaintiffs. 

Iȼ NȽɄȳȻȰȳɀ ˽˻˼˾ʕ JɃȲȵȳ Cȶȷȼ ȵɀȯȼɂȳȲ GȽȽȵȺȳȂɁ ȻȽɂȷȽȼ ȴȽɀ ɁɃȻȻȯɀɇ ȸɃȲȵȻent on its fair 

use defense against the remaining claims by the Authors Guild.47 After considering the four fair 

ɃɁȳ ȴȯȱɂȽɀɁ ȳȼɃȻȳɀȯɂȳȲ ȷȼ ˼Ȃ UʔSʔCʔ § ˼˻Ȃʕ ɂȶȳ ȱȽɃɀɂ ȱȽȼȱȺɃȲȳȲ ɂȶȯɂ ȃGȽȽȵȺȳ BȽȽȹɁ ȾɀȽɄȷȲȳɁ 

Ɂȷȵȼȷȴȷȱȯȼɂ ȾɃȰȺȷȱ ȰȳȼȳȴȷɂɁʕȄ ȯȼȲ ɂȶȯɂ ȷɂɁ ȰȽȽȹ Ɂȱȯȼning project constitutes fair use.48 The court 

ȴȽɃȼȲ ɂȶȯɂ GȽȽȵȺȳȂɁ ȃɃɁȳ Ƚȴ ȰȽȽȹ ɂȳɆɂ ɂȽ ȴȯȱȷȺȷɂȯɂȳ Ɂȳȯɀȱȶ ɂȶɀȽɃȵȶ ɂȶȳ ȲȷɁȾȺȯɇ Ƚȴ ɁȼȷȾȾȳɂɁȄ ɅȯɁ 

ɂɀȯȼɁȴȽɀȻȯɂȷɄȳ ȷȼ ȼȯɂɃɀȳ ȰȳȱȯɃɁȳ ȷɂ ȃɂɀȯȼɁȴȽɀȻɁ ȳɆȾɀȳɁɁȷɄȳ ɂȳɆɂ ȷȼɂȽ ȯ ȱȽȻȾɀȳȶȳȼɁȷɄȳ ɅȽɀȲ ȷȼȲȳɆ 

that helps readerɁʕ ɁȱȶȽȺȯɀɁʕ ɀȳɁȳȯɀȱȶȳɀɁʕ ȯȼȲ ȽɂȶȳɀɁ ȴȷȼȲ ȰȽȽȹɁʔȄ49 SɃȱȶ ɃɁȳʕ ɂȶȳ ȱȽɃɀɂ ȶȳȺȲʕ ȃȲȽȳɁ 

ȼȽɂ ɁɃȾȳɀɁȳȲȳ Ƚɀ ɁɃȾȾȺȯȼɂ ȰȽȽȹɁ ȰȳȱȯɃɁȳ ȷɂ ȷɁ ȼȽɂ ȯ ɂȽȽȺ ɂȽ Ȱȳ ɃɁȳȲ ɂȽ ɀȳȯȲ ȰȽȽȹɁʔȄ50 The court 

further held that, although Google copied books in their entirety, that factor did not weigh 

ɁɂɀȽȼȵȺɇ ȯȵȯȷȼɁɂ ȯ ȴȷȼȲȷȼȵ Ƚȴ ȴȯȷɀ ɃɁȳ ȰȳȱȯɃɁȳ ȃGȽȽȵȺȳ ȺȷȻȷɂɁ ɂȶȳ ȯȻȽɃȼɂ Ƚȴ ɂȳɆɂ ȷɂ ȲȷɁȾȺȯɇɁ ȷȼ 

ɀȳɁȾȽȼɁȳ ɂȽ ȯ ɁȳȯɀȱȶʔȄ51 For similar reasons, the court found that Google Books did not negatively 

impact the market for books, noting that GooȵȺȳȂɁ ȾȽȺȷȱɇ Ƚȴ ȃȰȺȯȱȹȺȷɁɂȷȼȵȄ ȱȳɀɂȯȷȼ ȾȯȵȳɁ ȯȼȲ 

snippets would prevent any user from accessing an entire book through multiple searches.52 

45 See PɀȳɁɁ RȳȺȳȯɁȳʕ AɁɁȂȼ Ƚȴ AȻʔ PɃȰȺȷɁȶȳɀɁʕ PɃȰȺȷɁȶȳɀɁ ȯȼȲ GȽȽȵȺȳ Rȳȯȱȶ SȳɂɂȺȳȻȳȼɂ ʠOȱɂʔ ˿ʕ ˽˻˼˽ʡʕ 

available at http://www.publishers.org/press/85/; see also Claire Cain Miller, Google Deal Gives Publishers a 

Choice: Digitize or Not, N.Y. TIMES, Oct. 5, 2012, http://www.nytimes.com/2012/10/05/technology/google-andpublishers-settle-over-digital-books.html?_r=0. 

46 As noted, see supra note 33, the photographers also settled separately with Google. 

47 Google II, 954 F. Supp. 2d 282. 

48 Id. at 293-94. 

49 Id. at 291. 

50 Id. 

51 Id. at 292. 

52 Id. at 292-93. 

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Thus, while the court found the Google Books project to be fair use, it did not address whether a 

mass digitization project involving uses beyond the display of snippets would qualify for such 

protection. Nor did it separately address treatment of orphan works outside of the mass 

digitization context. 

Tȶȳ ȯɃɂȶȽɀ ȾȺȯȷȼɂȷȴȴɁ ȶȯɄȳ ȯȾȾȳȯȺȳȲ ɂȶȳ ȲȷɁɂɀȷȱɂ ȱȽɃɀɂȂɁ ȲȳȱȷɁȷȽȼ ɂo the U.S. Court of 

Appeals for the Second Circuit. Oral argument was held on December 3, 2014. 

2. HathiTrust Litigation 

Iȼ SȳȾɂȳȻȰȳɀ ˽˻˼˼ʕ ɂȶȳ AɃɂȶȽɀɁ GɃȷȺȲʕ ȯȺȽȼȵ Ʌȷɂȶ ɂɅȽ ȴȽɀȳȷȵȼ ȯɃɂȶȽɀɁȂ ȵɀȽɃȾɁ ȯȼȲ ȯ 

number of individual authors, sued a consortium of colleges, universities, and other nonprofit 

institutions known as HathiTrust.53 HathiTrust members had agreed to allow Google to scan the 

books in their collections for inclusion in the HathiTrust Digital Library (ȃHDLȄ). For 

copyrighted works in the HDL, HathiTrust permitted three uses: (1) full-text searches by the 

general public, (2) full access for library patrons with certified print disabilities, and (3) creation of 

preservation copies under specified circumstances. In addition to those uses, the plaintiffs also 

ȱȶȯȺȺȳȼȵȳȲ ɂȶȳ UȼȷɄȳɀɁȷɂɇ Ƚȴ MȷȱȶȷȵȯȼȂɁ ɁȳȾȯɀȯɂȳ OɀȾȶȯȼ WȽɀȹɁ PɀȽȸȳȱɂʕ ɃȼȲȳɀ Ʌȶȷȱȶ ȽɃɂ-ofprint works whose copyright owners could not be located would be made accessible in digital 

format to library patrons. The complaint alleged, inter alia, that the plaintiffs were easily able to 

locate several of the authors whose works were deemed orphaned by HathiTrust, and thus the 

project was not actually limited to orphan works. Shortly after the complaint was filed, the 

University suspended the Orphan Works Project indefinitely.54 

In October 2012, the district court ruled in favor of HathiTrust on issues relating to fulltext searches, print-disabled access, and preservation.55 The court found these activities to be 

largely transformative and ultimatelɇ ȾɀȽɂȳȱɂȳȲ Ȱɇ ȴȯȷɀ ɃɁȳʕ ȴɃɀɂȶȳɀ ȽȾȷȼȷȼȵ ɂȶȯɂ ȃɂȶȳ ɃȼȲȳɀȺɇȷȼȵ 

ɀȯɂȷȽȼȯȺȳ Ƚȴ ȱȽȾɇɀȷȵȶɂ ȺȯɅ ȷɁ ȳȼȶȯȼȱȳȲȄ Ȱɇ ɂȶȳ HDLʔ56 The court did not reach the merits of the 

claims regarding the Orphan Works Project, however, finding instead that the issue was not ripe 

foɀ ȯȲȸɃȲȷȱȯɂȷȽȼ ȷȼ Ⱥȷȵȶɂ Ƚȴ ɂȶȳ ȾɀȽȸȳȱɂȂɁ ɁɃɁȾȳȼɁȷȽȼʔ57 

53 See Authors Guild, Inc. v. HathiTrust, 902 F. Supp. 2d 445 (S.D.N.Y. 2012). 

54 See id. at 449. 

55 Id. at 464. 

56 Id. 

57 Id. at 455-56. 

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Oȼ ȯȾȾȳȯȺʕ ɂȶȳ SȳȱȽȼȲ CȷɀȱɃȷɂ ɃȾȶȳȺȲ ɂȶȳ ȲȷɁɂɀȷȱɂ ȱȽɃɀɂȂɁ ȴȷȼȲȷȼȵ ɂȶȯɂ ɂȶȳ creation of a fulltext searchable database and the provision of access for the print-disabled were fair uses.58 The 

court vaȱȯɂȳȲ ɂȶȳ ȴȷȼȲȷȼȵ ɂȶȯɂ HȯɂȶȷTɀɃɁɂȂɁ ȾɀȳɁȳɀɄȯɂȷȽȼ ȴɃȼȱɂȷȽȼ ɅȯɁ ȴȯȷɀ ɃɁȳ ȯȼȲ ɀȳȻȯȼȲȳȲ ȴȽɀ 

ȱȽȼɁȷȲȳɀȯɂȷȽȼ Ƚȴ Ʌȶȳɂȶȳɀ ɂȶȳ ȾȺȯȷȼɂȷȴȴɁ ȶȯȲ ɁɂȯȼȲȷȼȵ ɂȽ ȱȶȯȺȺȳȼȵȳ ɂȶȯɂ ȯɁȾȳȱɂ Ƚȴ HȯɂȶȷTɀɃɁɂȂɁ 

activities.59 Iȼ ȯȲȲȷɂȷȽȼʕ ɂȶȳ ȱȽɃɀɂ ȯȴȴȷɀȻȳȲ ɂȶȳ ȲȷɁɂɀȷȱɂ ȱȽɃɀɂȂɁ ɀɃȺȷȼȵ ɂȶȯɂ ɂȶȳ ȾȺȯȷȼɂȷȴȴɁȂ ȱȶȯȺȺȳȼȵȳ 

to the Orphan Works Project was not ripe for adjudication.60 

C. International Experiences 

Foreign governments likewise have grappled with the challenge of facilitating beneficial 

uses of copyrighted works when obtaining clearance is effectively impossible – either because of a 

ɅȽɀȹȂɁ ȽɀȾȶȯȼ ɁɂȯɂɃɁ Ƚɀ ɂȶȳ ȼɃȻȰȳɀ Ƚȴ ɀȷȵȶɂɁȶȽȺȲȳɀɁ ȷȼɄȽȺɄȳȲʔ A ȶȯȼȲȴɃȺ Ƚȴ ȱȽɃȼɂɀȷȳɁ ȶȯɄȳ ȺȽȼȵ 

had laws addressing this issue in certain contexts, and many others have adopted legislative 

responses within the past decade. To date, more than twenty countries have enacted such laws, 

some of which are limited to the use of orphan works on a case-by-case basis, while others permit 

licensing on a mass scale.61 In the aggregate, however, they indicate that U.S. stakeholders, to the 

extent they participate in the global copyright marketplace, are likely to be affected by legislation 

in this area even if the United States does not develop a response of its own. The provisions 

discussed below do not constitute an exhaustive list, but rather provide a representative overview 

of how these issues have been handled internationally. 

1. The Nordic Model: Extended Collective Licensing 

For several decades, the Nordic countries have maintained ECL regimes, which allow 

CMOs to license numerous works within a specific field of use, including works owned by 

rightsholders who are not members of the organization. While there is some variety in these 

provisions, they commonly provide ECL for activities such as broadcasting and cable 

retransmission, reproduction for educational purposes, reproduction for internal uses by 

58 Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014). 

59 Id. at 104. 

60 Id. at 105. 

61 AȾȾɀȽɆȷȻȯɂȳȺɇ ɂɅȳȼɂɇ ȱȽɃȼɂɀȷȳɁ ȶȯɄȳ ȷȻȾȺȳȻȳȼɂȳȲ ɂȶȳ EɃɀȽȾȳȯȼ UȼȷȽȼȂɁ OȱɂȽȰȳɀ ˽˻˼˽ DȷɀȳȱɂȷɄȳ Ƚȼ 

Certain Permitted Uses of Orphan Works in national legislation. See infra note 80. Several additional 

countries have adopted other types of orphan works legislation or legislation to address large-scale uses 

through extended collective licensing. For additional information on foreign approaches to these issues, see 

the charts attached as Appendices E (orphan works laws) and F (ECL laws). 

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businesses and other organizations, and uses by libraries, archives, and museums.62 ECL thus is 

often employed to facilitate uses that are considered socially beneficial but for which the costs of 

obtaining rights on an individual basis may be prohibitively high. Under an ECL system, 

representatives of copyright owners and representatives of users negotiate terms that are binding 

on all members of the group by operation of law (e.g., all textbook publishers), unless a particular 

copyright owner opts out.63 A CMO authorized by the government collects the licensing fee and 

administers payments.64 It is not quite compulsory licensing in that the parties (rather than the 

government) negotiate the rates, but it requires a legislative framework and often involves some 

degree of government oversight. 

2. European Union: Two-Pronged Approach 

a. Orphan Works Directive 

In 2011, the European Commission issued a draft proposal for an orphan works directive 

along with a working paper entitled Impact Assessment on the Cross Border Online Access to Orphan 

Works.

65 The Commission acknowledged the difficulties caused by orphan works and noted that 

62 See JOHN AXHAMN & LUCIE GUIBAULT, INSTITUUT VOOR INFORMATIERECHT, CROSS-BORDER EXTENDED 

COLLECTIVE LICENSING: A SOLUTION TO ONLINE DISSEMINATION OF EUROPEȂS CULTURAL HERITAGE? 29, 43 

(2008), available at http://www.ivir.nl/publicaties/download/292. 

63 Daniel Gervais, Collective Management of Copyright Theory and Practice, in COLLECTIVE MANAGEMENT OF 

COPYRIGHT AND RELATED RIGHTS 21-22 (Daniel Gervais ed., 2d ed. 2010). 

64 See, e.g., Höfundalög 1972 nr. 73 29. Maí, eins og henni var síðast breytt með lögum nr 93/2010 [Copyright 

Act, No. 73, of 29 May 1972, as amended by Act No. 93 of 21 April 2010], arts. 15a, 23, 23a (Ice.), translated at 

http://www.wipo.int/wipolex/en/text.jsp?file_id=332081 (unofficial translation), last amended by Act No. 

126/2011 (translation unavailable; Report relies on 2010 version of the law); LOV 1961-05-12 nr 02: Lov om 

opphavsrett til åndsverk m.v. (åndsverkloven) [Act No. 2 of May 12, 1961 Relating to Copyright in Literary, 

Scientific and Artistic Works] as amended on Dec. 22, 2006, §§ 36, 37, 38a (Nor.), translated at 

http://www.wipo.int/wipolex/en/text.jsp?file_id=248181 (unofficial translation), last amended by LOV-2014­

06-13 nr 22 [Act No. 22 of June 13, 2014] (translation unavailable; Report relies on 2006 version of the law); 

LAG OM UPPHOVSRÄTT TILL LITTERÄRA OCH KONSTNÄRLIGA VERK [URL] [Act on Copyright in Literary and 

Artistic Works] (Svensk författningssamling [SFS] 1960:729), as amended by LAG, June 27, 2013 (2013:691), 

§§ 42a (Swed.) (unofficial translation on file with United States Copyright Office); last amended by LAG, 

July 8, 2014 (SFS 2014:884) (translation unavailable; Report relies on 2013 version of the law). 

65 Commission Staff Working Paper: Impact Assessment on the Cross-Border Online Access to Orphan Works 

Accompanying the Proposal for a Directive of the European Parliament and of the Council on Certain Permitted Uses 

of Orphan Works, COM (2011) 289 final (May 24, 2011), available at 

http://ec.europa.eu/governance/impact/ia_carried_out/docs/ia_2011/sec_2011_0615_en.pdȴ ʠȃEU IȻȾȯȱɂ 

AɁɁȳɁɁȻȳȼɂȄʡʔ Lȷȹȳ ɂȶȳ UȼȷɂȳȲ SɂȯɂȳɁʕ ɂȶȳ EɃɀȽȾȳȯȼ UȼȷȽȼ ȶȯɁ Ȱȳȳȼ ȳɆȯȻȷȼȷȼȵ ɂȶȳ ȷɁɁɃȳ Ƚȴ ȽɀȾȶȯȼ ɅȽɀȹɁ 

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a solution in the EU was particularly urgent ɂȽ ȯɄȽȷȲ ȯ ȃȹȼȽɅȺȳȲȵȳ ȵȯȾȄ Ʌȷɂȶ ɂȶȳ UȼȷɂȳȲ SɂȯɂȳɁ ȷȴ 

the then-pending Google Books settlement were approved. The Commission identified several 

policy options for handling orphan works and assessed the economic and social impacts of each.66 

Among the options the Commission considered were ECL, a specific orphan works license, and a 

statutory exception. 

The EU rejected ECL because that model, which does not require users to conduct an 

upfront diligent search prior to engaging in use of orphan works, would nȽɂ ȯȺȺȽɅ ȴȽɀ ȯ ȃȾȽɁȷɂȷɄȳ 

ȲȳɂȳɀȻȷȼȯɂȷȽȼȄ Ƚȴ ɅȽɀȹɁȂ ȽɀȾȶȯȼ ɁɂȯɂɃɁ.

67 Any agreement negotiated between a library or other 

memory institution and a collecting society to digitize or use certain books (e.g., out-of-print 

books) would extend to all copyright rightsholders beyond the known and registered members of 

the collecting society (including orphan rightsholders). Because orphan works would be included 

as part of the license and presumably would be made available under such license without being 

explicitly recognized as orphans, ECL would not allow for mutual recognition of orphan works 

across the European Community – a principle that the EU highly valued during its 

deliberations.68 Further, the EU rejected ECL because of the perceived difficulties in establishing 

licensing rates and the concern that any library making use of a large number of orphan works 

could be forced to pay significant sums for works that have no defined market value.69 

for many years. See, e.g., Communication from the Commission to the European Parliament, the Council, the 

European Economic and Social Committee and the Committee of the Regions, i2010: Digital Libraries, COM (2005) 

465 final (Sept. 30, 2005), available at http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:52005DC0465&from=EN (indicating that the EU may need to intervene 

regarding the orphan works issue); Green Paper on Copyright in the Knowledge Economy, COM(2008) 466 final, 

Brussels, 16 July 2008, available at http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:52008DC0466&rid=1 (acknowledging the cross-border implications of 

the orphan works issue); Commission Recommendation 2006/585/EC of 24 August 2006 on the Digitisation 

and Online Accessibility of Cultural Material and Digital Preservation, 2006 O.J. (L 236), available at 

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32006H0585&rid=2 (encouraging member 

states to adopt licensing mechanisms to facilitate the use of orphan works and promulgate lists of known 

orphan works). 

66 See EU Impact Assessment, supra note 65, at 21-35. 

67 Id. at 27-29. 

68 Id. 

69 Id. at 28. The EU noted that digitizing the estimated fifty million orphan works in the United Kingdom 

under an ECL regime could cost British libraries as much as ʌ ȁȀ˻ ȻȷȺȺȷȽȼʔ TȽ ȷȺȺɃɁɂɀȯɂȳ ɂȶȳ ȻȯȵȼȷɂɃȲȳ Ƚȴ 

this cost, the EU noted that the 2008-˻Ȅ ɂȽɂȯȺ ȲȽȻȳɁɂȷȱ ɀȳȾɀȽȵɀȯȾȶɇ ȷȼȱȽȻȳ Ƚȴ ɂȶȳ UʔKʔȂɁ CȽȾɇɀȷȵȶɂ 

LȷȱȳȼɁȷȼȵ Aȵȳȼȱɇ ɅȯɁ ʌ ȁ˾ʔȀ ȻȷȺȺȷȽȼ ȯȼȲ ɂȶȳ BɀȷɂȷɁȶ LȷȰɀȯɀɇȂɁ ȰɃȲȵȳɂ ɅȯɁ ʌ ˼˿˻ ȻȷȺȺȷȽȼʔ Id. 

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The EU also considered but declined to implement a specific license for orphan works.70 

The EU found that this model, which would require a library user to obtain a license for online 

access to recognized orphan works via each collecting society operating in the countries of the 

ɅȽɀȹɁȂ ȴȷɀɁɂ ȾɃȰȺȷȱȯɂȷȽȼʕ ȱȽɃȺȲ ȾɀȳɁȳȼɂ Ɂȷgnificant challenges for libraries with collections 

comprised of works published in several jurisdictions.71 Beyond this, the EU determined that 

there would be significant challenges in establishing reasonable licensing rates for works deemed 

to be orphans.72 

Ultimately, the EU opted for a statutory exception-based model. In October 2012, the 

European Council formally approved the proposed Directive on Certain Permitted Uses of 

Orphan Works, which requires member states to establish a statutory exception to the rights of 

ɀȳȾɀȽȲɃȱɂȷȽȼ ȯȼȲ ȃȻȯȹȷȼȵ ȯɄȯȷȺȯȰȺȳȄ ȴȽɀ ȱȳɀɂȯȷȼ permitted uses of orphan works.73 The Directive 

excludes photographs unless embedded in other works, and limits the use of orphan works to 

ȃȺȷȰɀȯɀȷȳɁʕ ȳȲɃȱȯɂȷȽȼȯȺ ȳɁɂȯȰȺȷɁȶȻȳȼɂɁ and museums, . . . archives, film or audio heritage 

institutions and public-service broadcasting organisȯɂȷȽȼɁȄ ɂȶȯɂ ȯɀȳ ȺȽȱȯɂȳȲ ȷȼ ȻȳȻȰȳɀ ɁɂȯɂȳɁ ȯȼȲ 

that have public service missions.74 A public service organization that falls under the Directive 

may partner with a private organizatȷȽȼ ȯȼȲ ȃȵȳȼȳɀȯɂȳ ɀȳɄȳȼɃȳɁ ȷȼ ɀȳȺȯɂȷȽȼ ɂȽ ɂȶȳȷɀ ɃɁȳ Ƚȴ ȽɀȾȶȯȼ 

ɅȽɀȹɁȄ ȷȴ ɂȶȯɂ ɃɁȳ ȷɁ ȱȽȼɁȷɁɂȳȼɂ Ʌȷɂȶ ɂȶȳ ȾɃȰȺȷȱ ɁȳɀɄȷȱȳ ȽɀȵȯȼȷɈȯɂȷȽȼȂɁ ȻȷɁɁȷȽȼʔ75 The private sector 

partner, however, is not permitted to use the works directly.76 

The Directive requires a diligent search and provides that once a work is deemed 

orphaned in one member state, it is deemed orphaned ȷȼ ȯȺȺ ȻȳȻȰȳɀ ɁɂȯɂȳɁ ȯȼȲ ȃȻȯɇ Ȱȳ ɃɁȳȲ ȯȼȲ 

70 Id. at 29-31. 

71 Id. at 30. 

72 Id. 

73 Tȶȳ EɃɀȽȾȳȯȼ CȽɃȼȱȷȺȂɁ ȯȾȾɀȽɄȯȺ ȻȯɀȹȳȲ ɂȶȳ ȺȯɁɂ ɁɂȳȾ ȷȼ ɂȶȳ ȺȳȵȷɁȺȯɂȷɄȳ ȾɀȽȱȳɁɁʔ See Press Release, 

Council of the European Union, Intellectual Property: New EU Rules for Orphan Works (Oct. 4, 2012), 

available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/intm/132721.pdf. 

74 Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on Certain 

Permitted Uses of Orphan Works, art. 1(1), 2012 O.J. (L 299) 8, available at http://eurȺȳɆʔȳɃɀȽȾȯʔȳɃ/LȳɆUɀȷSȳɀɄ/LȳɆUɀȷSȳɀɄʔȲȽʚɃɀȷɢOJʖLʖ˽˻˼˽ʖ˽ȄȄʖ˻˻˻Ȁʖ˻˻˼˽ʖENʖPDF ʠȃEU OɀȾȶȯȼ WȽɀȹɁ 

DȷɀȳȱɂȷɄȳȄʡ. 

75 Id. recital 21. 

76 Id. recital 22. 

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U.S. Copyright Office Orphan Works and Mass Digitization 

ȯȱȱȳɁɁȳȲȄ ȷȼ ȯȼɇ Ƚȴ ɂȶȳȻʔ77 The Directive also calls for a single registry to maintain data on all 

works deemed orphan.78 A rightsholder who later resurfaces may reclaim ownership of a work 

once deemed orphan and claim fair compensation for the use of the work as provided by 

ȷȼȲȷɄȷȲɃȯȺ ȻȳȻȰȳɀ ɁɂȯɂȳɁȂ ȺȯɅɁʔ MȳȻȰȳɀ ɁɂȯɂȳɁ Ʌȳɀȳ ɀȳȿɃȷɀȳȲ ɂȽ ȷȻȾȺȳȻȳȼɂ ɂȶȳ DȷɀȳȱɂȷɄȳ ȷȼ 

national legislation by October 29, 2014,79 and twenty countries reportedly have done so to date.80 

Implementation of the EU Directive has not come without criticism, however, specifically of its 

limited scope and lack of certainty for orphan works users.81 

b. Memorandum of Understanding 

Although the European Union did not endorse an ECL model as part of a legislative 

proposal to address orphan works, the EU did support collective licensing as one important 

aspect of any comprehensive orphan works solution. In 2011, the European Commission assisted 

private parties in negotiating a Memorandum of Understanding (the ȃMOUȄ) to encourage 

ɄȽȺɃȼɂȯɀɇ ȱȽȺȺȳȱɂȷɄȳ ȺȷȱȳȼɁȷȼȵ ȴȽɀ ȃȽɃɂ-of-ȱȽȻȻȳɀȱȳȄ ȰȽȽȹɁ ȯȼȲ ȸȽɃɀȼȯȺɁʔ82 The MOU defines outof-commerce works as works that are no longer commercially available because authors and 

publishers have chosen not to publish new editions or sell copies through the customary channels 

of commerce.83 The MOU expresses several principles that libraries, publishers, authors, and 

collecting societies should follow in order to license the digitization and making available of 

books or journals that are out-of-commerce. The European Commission views the MOU as 

77 Id. art. 4. 

78 Id. recital 16. 

79 Id. art. 9. 

80 See Kerstin Herlt, ACE Survey on the Implementation of the Orphan Works Directive, FORWARD (Apr. 3, 

2015), http://project-forward.eu/2015/04/03/ace-survey-on-the-implementation-of-the-orphan-worksdirective/. 

81 See, e.g., Berkeley Digital Library Copyright Project Initial Comments at 22 (citing comments by European 

public interest organizations criticizing the Directive for not applying to commercial users or uses, and for 

exposing orphan work users to retroactive financial liability). 

82 Memorandum of Understanding, Key Principles of the Digitsation and Making Available of Out-ofCommerce Works (Sept. 20, 2011), available at 

http://ec.europa.eu/internal_market/copyright/docs/copyright-infso/20110920-mou_en.pdf ʠȃMOU Ƚȼ OɃɂof-CȽȻȻȳɀȱȳ WȽɀȹɁȄʡʔ 

83 Id. at 2. 

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complementary to the Orphan Works Directive, and part of a two-pronged approach to facilitate 

the development of digital libraries in Europe.84 

3. Hungary 

Hungary currently addresses the orphan works problem under three separate sections of 

the Hungarian Copyright Act (HCA). Through Act CII of 2003, Hungary amended the HCA to 

include a free use provision allowing libraries, archives, and other educational institutions, in the 

absence of an agreement to the contrary, to provide limited, on-site access to the works in their 

collections, including orphans, to members of the public through specially-dedicated computer 

terminals for scholarly research and other educational purposes.85 

HɃȼȵȯɀɇȂɁ ȱȽȺȺȳȱɂȷɄȳ ɀȷȵȶɂɁ ȻȯȼȯȵȳȻȳȼɂ ȾɀȽɄȷɁȷȽȼɁ Ȼȯɇ ȯȺɁȽ ȱȽɄȳɀ ɂȶȳ ȳɆȾȺȽȷɂȯɂȷȽȼ Ƚȴ 

certain economic rights in some works that would otherwise be orphans. Under Hungarian 

copyright law, there exist three types of collective rights management: compulsory collective 

rights management, collective rights management founded on a voluntary agreement between 

the rightsholders, and collective rights management prescribed by statute.86 All three types of 

ȱȽȺȺȳȱɂȷɄȳ ɀȷȵȶɂɁ ȻȯȼȯȵȳȻȳȼɂ ȯɀȳ ɁȯȷȲ ɂȽ ȶȯɄȳ ȃȳɆɂȳȼȲȳȲȄ ȳȴȴȳȱɂʖ ɂȶȳ CMO Ȼȯɇ ȺȷȱȳȼɁȳ ɁȾȳȱȷȴȷȱ 

rights in works on behalf of both members and non-members of the CMO.87 The latter two forms 

(voluntary and statutorily-prescribed) also permit rightholders to opt out of the arrangement 

84 See Communication from the Commission to the European Parliament, the Council, the European Economic and 

Social Committee and the Committee of the Regions, A Single Market for Intellectual Property Rights: Boosting 

Creativity and Innovation to Provide Economic Growth, High Quality Jobs and First Class Products and Services in 

Europe, at 24, COM (2011) 287 final (May 24, 2011), available at http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:52011DC0287&from=EN. 

85 ˽˻˻˾ʔ ɜɄȷ CIIʔ ɂʈɀɄɜȼɇ ȳȵɇȳɁ ȷȾȯɀȸȽȵɄɜȲȳȺȻȷ ɜɁ ɁɈȳɀɈʋȷ ȸȽȵȷ ɂʈɀɄɜȼɇȳȹ ȻʅȲȽɁɬɂɉɁɉɀʅȺ ʠAȱɂ CII Ƚȴ ˽˻˻˾ Ƚȼ 

the Amendment of Certain Industrial Rights Protection and Copyright Statutes), § 66 (translation 

ɃȼȯɄȯȷȺȯȰȺȳʡʗ ˼ȄȄȄʔ ɜɄȷ LXXVIʔ ɂʈɀɄɜȼɇ ȯ ɁɈȳɀɈʋȷ ȸȽȵɀól (Act LXXVI of 1999 on Copyright) § 38(5) (effective 

Oct. 29, 2014) (translation of the most recent version of the statute unavailable). 

86 ˼ȄȄȄʔ ɜɄȷ LXXVIʔ ɂʈɀɄɜȼɇ ȯ ɁɈȳɀɈʋȷ ȸȽȵɀʅȺ ʠAȱɂ LXXVI Ƚȴ ˼ȄȄȄ Ƚȼ CȽȾɇɀȷȵȶɂʡʕ § ȃȂʠ˼ʡʕ ʠ˾ʡ ʠȳȴȴȳȱɂȷɄȳ Oȱɂʔ ˽Ȅʕ 

2014); NAGYKOMMENTÁR A SZERZȃI JOGI TÖRVÉNYHEZ [GRAND COMMENTARY ON THE COYPRIGHT ACT], § 87, 1. 

pont (Péter Gyertyánfy, ed., 2014). 

87 NAGYKOMMENTÁR A SZERZȃI JOGI TÖRVÉNYHEZ [GRAND COMMENTARY ON THE COYPRIGHT ACT], § 87, 1. 

pont (Péter Gyertyánfy, ed., 2014); a very slight exception to this rule is where multiple CMOs represent the 

same economic rights of the same group of rightholders. Here, the CMOs must agree as to which CMO will 

enjoy extended effect in its licensing, and in the absence of agreement, the Hungarian Intellectual Property 

Office (HIPO) will designate the CMO most suited to this task. See ˼ȄȄȄʔ ɜɄȷ LXXVIʔ ɂʈɀɄɜȼɇ ȯ ɁɈȳɀɈʋȷ 

jogról (Act LXXVI of 1999 on Copyright), § 87(2), (4) (effective Oct. 29, 2014). 

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within a reasonable time. Because the statute permits collective rights management founded on a 

voluntary agreement between the rightholders, there is theoretically no limit on the works and 

economic rights eligible for collective rights management. However, any proposed CMO would 

be subject to approval by the Hungarian Intellectual Property Office (HIPO) and the related 

conditions for approval set out in the Hungarian Copyright Act.88 

The first version of a Hungarian system specifically dedicated to permitting the use of 

orphan works came into effect on February 1, 2009.89 Under the orphan works provisions of the 

HCA, HIPO may grant licenses for both for-profit and non-profit uses of orphan works to 

applicants who carry out a documented diligent search and pay compensation for such use.90 

Licenses for the use of orphan works are only valid for a term not exceeding five years, are only 

valid in Hungary, and are non-exclusive and non-transferable.91 Significantly, HIPO may only 

grant permission to use orphan works that are not already subject to collective licensing.92 If a 

work is subject to collective rights management, but the author opted out and subsequently 

became unknown or moved to an unidentified location, the Hungarian legal literature suggests 

88 ˼ȄȄȄʔ ɜɄȷ LXXVIʔ ɂʈɀɄɜȼɇ ȯ ɁɈȳɀɈʋȷ ȸȽȵɀʅȺ ʠAȱɂ LXXVI Ƚȴ ˼ȄȄȄ Ƚȼ CȽȾɇɀȷȵȶɂʡʕ §§ Ȅ˻-92 (effective Oct. 29, 

2014). 

89 2008. évi CXII. törvény ȯ ɁɈȳɀɈʋȷ ȸȽȵɀʅȺ ɁɈʅȺʅ ˼ȄȄȄʔ ɜɄȷ LXXVIʔ ɂʈɀɄɜȼɇ ȻʅȲȽɁɬɂɉɁɉɀʅȺ ʠAȱɂ CXII Ƚȴ ˽˻˻ȃ Ƚȼ 

the Amendment of Act LXXVI of 1999 on Copyright), §§ 8, 25 (effective Oct. 29, 2014); strictly speaking, the 

2009 orphan works provisions are not the first orphan-works provisions under Hungarian Copyright law. 

The Hungarian academic literature refers to some type of orphan works system put in place during the 

1950s. See Dénes István Legeza, ʓSegítsük az árvákatȅ0 útmutató az árva művek egyes felhasználásaihoz [ȄLetȃs 

Help the Orphansȅ0 Guidelines on Certain Uses of Orphan Works], 7(5) IPARJOGVÉDELMI ÉS SZERZȃI JOGI SZEMLE 

[REV. INDUS. RTS. PROT. & COPYRIGHT L.] 23, 26-27 (2012). 

90 ˼ȄȄȄʔ ɜɄȷ LXXVIʔ ɂʈɀɄɜȼɇ ȯ ɁɈȳɀɈʋȷ ȸȽȵɀʅȺ ʠAȱɂ LXXVI Ƚȴ ˼ȄȄȄ Ƚȼ CȽȾɇɀȷȵȶɂʡʕ § ȀȂ/Aʠ˼ʡ-(2) (effective Mar. 

15, 2014 – Oȱɂʔ ˽ȃʕ ˽˻˼˿ʡʗ ˼ȄȄȄʔ ɜɄȷ LXXVIʔ ɂʈɀɄɜȼɇ ȯ ɁɈȳɀɈʋȷ ȸȽȵɀʅȺ ʠAȱɂ LXXVI Ƚȴ ˼ȄȄȄ Ƚȼ CȽȾɇɀȷȵȶɂʡʕ 

§41/B(1)-(2) (effective Oct. 29, 2014); see also Mihály Ficsor, How to Deal with Orphan Works in the Digital 

World? An Introduction to the New Hungarian Legislation on Orphan Works, EUROPEAN PARLIAMENT 

DIRECTORATE GENERAL FOR INTERNAL POLICIES (2009), 

http://www.europarl.europa.eu/document/activities/cont/200911/20091113ATT64497/20091113ATT64497EN 

.pdf. 

91 ˼ȄȄȄʔ ɜɄȷ LXXVIʔ ɂʈɀɄɜȼɇ ȯ ɁɈȳɀɈʋȷ ȸȽȵɀól (Act LXXVI of 1999 on Copyright), § 57/A(1) (effective Mar. 15, 

2014 – Oȱɂʔ ˽ȃʕ ˽˻˼˿ʡʗ ˼ȄȄȄʔ ɜɄȷ LXXVIʔ ɂʈɀɄɜȼɇ ȯ ɁɈȳɀɈʋȷ ȸȽȵɀʅȺ ʠAȱɂ LXXVI Ƚȴ ˼ȄȄȄ Ƚȼ CȽȾɇɀȷȵȶɂʡʕ §˿˼/Bʠ˼ʡ 

(effective Oct. 29, 2014). 

92 ˼ȄȄȄʔ ɜɄȷ LXXVIʔ ɂʈɀɄɜȼɇ ȯ ɁɈȳɀɈʋȷ ȸȽȵɀʅȺ ʠAȱɂ LXXVI of 1999 on Copyright), § 57/A(7) (effective Mar. 15, 

2014 – Oȱɂʔ ˽ȃʕ ˽˻˼˿ʡʗ ˼ȄȄȄʔ ɜɄȷ LXXVIʔ ɂʈɀɄɜȼɇ ȯ ɁɈȳɀɈʋȷ ȸȽȵɀʅȺ ʠAȱɂ LXXVI Ƚȴ ˼ȄȄȄ Ƚȼ CȽȾɇɀȷȵȶɂʡʕ § ˿˼/AʠȄʡ 

(effective Oct. 29, 2014). 

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U.S. Copyright Office Orphan Works and Mass Digitization 

that such a work could be licensed under the orphan works system.93 The regulations 

accompanying the orphan works provisions also require HIPO to record the permissions it has 

granted in a publicly-available registry.94 

The orphan works provisions of the HCA were recently amended through Act CLIX of 

2013 to implement the EU Orphan Works Directive.95 Under the recent amendment, users not 

specifically named in the Orphan Works Directive continue to apply to HIPO for permission to 

ɃɁȳ ȽɀȾȶȯȼ ɅȽɀȹɁʕ ȯɁ ȰȳȴȽɀȳʔ UɁȳɀɁ ȼȯȻȳȲ ȷȼ ɂȶȳ OɀȾȶȯȼ WȽɀȹɁ DȷɀȳȱɂȷɄȳ ʠȃȰȳȼȳȴȷȱȷȯɀɇ 

ȷȼɁɂȷɂɃɂȷȽȼɁȄʡ Ȼȯɇ ɃɁȳ ɅȽɀȹɁ ȱȽȻȾɀȷɁȷȼȵ Ⱦȯɀɂ Ƚȴ ɂȶȳȷɀ ȽɅȼ ȱȽȺȺȳȱɂȷȽȼɁ ȯȱȱȽɀȲȷȼȵ ɂȽ ɂȶȳ ɀɃȺȳɁ Ƚȴ ɂȶȳ 

Directive. Presumably, these beneficiary institutions would be required to apply to HIPO for 

permission to use works not comprising part of their collections, or to use orphan works in a 

manner not contemplated under the Directive. All orphan works-related changes entered into 

force on October 29, 2014, as per the Directive.96 

4. France 

France passed a law in February 2012 to make it easier to digitize twentieth century outof-commerce books, implicating books published in France before January 1, 2001 that are not 

93 Dénes István Legeza, ʓSegítsük az árvákatȅ0 útmutató az árva művek egyes felhasználásaihoz [ȄLetȃs Help the 

Orphansȅ0 Guidelines on Certain Uses of Orphan Works], 7(5) IPARJOGVÉDELMI ÉS SZERZȃI JOGI SZEMLE [REV. 

INDUS. RTS. PROT. & COPYRIGHT L.] 23, 48 (2012). 

94 ˼˾ȃ/˽˻˼˿ʔ ʠIVʔ˾˻ʔʡ KȽɀȻʔ ɀʔ ȯɈ ɉɀɄȯ Ȼʤ ȴȳȺȶȯɁɈȼɉȺɉɁɉȼȯȹ ɀészletes szabályairól (Governmental Decree No. 

138/2014 (IV. 30.) on Detailed Regulations on the Use of Orphan Works), §8; 100/2009. (V. 8.) Korm. r. az 

ɉɀɄȯ Ȼʤ ȳȵɇȳɁ ȴȳȺȶȯɁɈȼɉȺɉɁȯȷȼȯȹ ȳȼȵȳȲɜȺɇȳɈɜɁɜɀȳ ɄȽȼȯɂȹȽɈʅ ɀɜɁɈȺȳɂȳɁ ɁɈȯȰɉȺɇȽȹɀʅȺ ʠGȽɄȳɀȼȻȳȼɂȯȺ Dȳȱɀȳȳ 

No. 100/2009 (V. 8.) on Detailed Regulations Concerning the Permitting of Certain Uses of Orphan Works), 

§ 8. Through May 13, 2015, HIPO had recorded only forty-five separate licenses in its public registry of 

orphan works, covering seventy-eight separate works. See Árva művek nyilvántartása (Registry of Orphan 

Works), HUNGARIAN INTELLECTUAL PROPERTY OFFICE (May 13, 2015), http://www.sztnh.gov.hu/hu/szakmaioldalak/szerzoi-jog/mivel-fordulhat-hozzank/arva-mu/arva-muvek-nyilvantartasa. 

95 2013. évi CLIX. törvény a szellemi tulajdonra vonatkozó egyes törvények módosításáról (Act CLIX of 2013 

on the Amendment of Certain Statutes Concerning Intellectual Property), §§ 5, 16, 24, 26, 27(b); see also Péter 

Mezei, The New Orphan Works Regulation of Hungary, 45(8) INTȂL REV. INTELL. PROP. 940 (2014) (discussing 

ɂȶȳ ȲȳɂȯȷȺɁ Ƚȴ ɂȶȳ ɀȳȱȳȼɂ ȯȻȳȼȲȻȳȼɂ ȯȼȲ HɃȼȵȯɀɇȂɁ ȳɆȾȳɀȷȳȼȱȳ Ʌȷɂȶ ȷɂɁ ȽɀȾȶȯȼ ɅȽɀȹɁ ȾɀȽɄȷɁȷȽȼɁ ɃȾ ɂȽ ɂȶȳ 

time of the amendment). 

96 2013. évi CLIX. törvény a szellemi tulajdonra vonatkozó egyes törvények módosításáról (Act CLIX of 2013 

on the Amendment of Certain Statutes Concerning Intellectual Property) § 34(3). 

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currently being commercially distributed or published either in print or digital formats.97 Each 

book classified as out-of-commerce is listed in a register managed by the French National Library. 

Tȶȳ ȯɃɂȶȽɀ Ƚɀ ȾɃȰȺȷɁȶȳɀ ɂȶȳȼ ȶȯɁ ɁȷɆ ȻȽȼɂȶɁ ɂȽ ȽȰȸȳȱɂ ɂȽ ȻȯȼȯȵȳȻȳȼɂ Ƚȴ ɂȶȳ ȰȽȽȹȂɁ ȲȷȵȷɂȯȺ ɀȷȵȶɂɁ 

by a designated CMO. In the case of a publisher, an objection triggers an obligation to exploit the 

book within two years. If no objection is filed, the CMO is authorized to license the reproduction 

and dissemination of the work in a digital format.98 The publisher holding rights to the print 

edition has a priority right to negotiate with the CMO for an exclusive license to release a digital 

version, which it must do within three years, or the CMO may offer non-exclusive digital licenses 

to other publishers.99 If no copyright owner claims rights to a work within ten years of its transfer 

to a CMO, libraries and archives will be allowed, with some exceptions, to digitize and provide 

access to it free of charge, so long as the institution does not pursue a commercial or economic 

advantage.100 

The most recent list published by the Bibiothéque nationale includes approximately 99,000 

ȃɃȼȯɄȯȷȺȯȰȺȳȄ ɂȷɂȺȳɁʔ101 Such listings, however, have generated only a small number of oppositions 

from rightsholders. As of October 2013, Sofia, the collecting society designated to administer the 

97 See Loi 2012-˽ȃȂ ȲɃ ˼ȳɀ ȻȯɀɁ ˽˻˼˽ ɀȳȺȯɂȷɄȳ Ɋ ȺȂȳɆȾȺȽȷɂȯɂȷȽȼ ȼɃȻɜɀȷȿɃȳ ȲȳɁ ȺȷɄɀȳɁ ȷȼȲȷɁȾȽȼȷȰȺȳɁ ȲɃ ɆɆȳ 

siècle [Law 2012-287 of March 1, 2012, on the Digital Exploitation of Unavailable Books of the 20th 

Century], JOURNAL OFFICIEL DE LA RÉPUBLIQUE FRANÇAISE [J.O.] [OFFICIAL GAZETTE OF FRANCE] Mar. 2, 2012, 

Ⱦʔ ˾Ȅȃȁ ʠɂɀȯȼɁȺȯɂȷȽȼ ɃȼȯɄȯȷȺȯȰȺȳʡ ʠȃLȯɅ ˽˻˼˽–˽ȃȂȄʡʗ see also Veraliah, French Parliament Passed Law on Out of 

Commerce Works on 22nd February 2012, INTERNATIONAL FEDERATION OF REPRODUCTION RIGHTS 

ORGANIZATIONS (Mar. 1, 2012), http://www.ifrro.org/content/french-parliament-passed-law-out-commerceworks-22nd-february-2012. This legislation is separate from the EU Orphan Works Directive, which France 

implemented on February 20, 2015. See Loi 2015-195 du 20 février 2015 portant diverses dispositions 

ȲȂȯȲȯȾɂȯɂȷȽȼ ȯɃ ȲɀȽȷɂ Ȳȳ ȺȂUȼȷȽȼ ȳɃɀȽȾɜȳȼȼȳ ȲȯȼɁ ȺȳɁ ȲȽȻȯȷȼȳɁ Ȳȳ Ⱥȯ ȾɀȽȾɀȷɜɂɜ Ⱥȷɂɂɜɀȯȷɀȳ ȳɂ ȯɀɂȷɁɂȷȿɃȳ ȳɂ ȲɃ 

patrimoine culturel (1) [Law 2015-195 of February 20, 2015 Regarding Various Provisions to Adapt to 

European Union Law in the Fields of Literary and Artistic Property and Cultural Heritage] JOURNAL 

OFFICIEL DE LA RÉPUBLIQUE FRANÇAISE [J.O.] [OFFICIAL GAZETTE OF FRANCE] Feb. 22, 2015, p. 3294 (translation 

unavailable). 

98 Law 2012-287 arts. 134-2, 134-3. 

99 Id.; see also Jane C. Ginsburg, Fair Use for Free, or Permitted-but-Paid? 42 (Columbia Law Sch. Ctr. for Econ. 

Studies, Working Paper No. 481), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2444500; 

Veraliah, supra note 97; David R. Hansen, Orphan Works: Mapping the Possible Solution Spaces, supra note 10, 

at 17-18 & n.99. 

100 Law 2012-287 art. 134-8. 

101 Liste de livres en gestion collective [List of Books Under Collective Management], BIBLIOTHÉQUE NATIONALE DE 

FRANCE [NATIONAL LIBRARY OF FRANCE], https://relire.bnf.fr/registre-gestion-collective. 

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U.S. Copyright Office Orphan Works and Mass Digitization 

licenses for unavailable books, reportedly had received only 2,500 oppositions, primarily from 

authors and publishers intending to publish digital editions of their works.102 

The French law has been criticized on the ground that it goes beyond the Nordic ECL 

model by granting management authority to a collecting society that need not make a showing 

that it is representative of relevant rightsholders.103 It also has been argued that the law fails to 

offer an adequate opt-ȽɃɂ ȻȳȱȶȯȼȷɁȻ ȰȳȱȯɃɁȳ ȷɂ ȃȼȽɂ ȽȼȺɇ ɀȳȿɃȷɀȳɁ ȯɃɂȶȽɀɁ ȯȼȲ ȾɃȰȺȷɁȶȳɀɁ ɂȽ 

declare their ownership and their objections in order to retain their rights, but also, at least for the 

publishers, in fact to exercise their rights, lest they be grȯȼɂȳȲ ɂȽ Ƚɂȶȳɀ ȾɃȰȺȷɁȶȳɀɁʔȄ104 

5. Germany 

In 2013, Germany enacted legislation providing for extended collective licensing of out-ofcommerce works published before January 1, 1966 currently in the collections of publicly 

accessible libraries, educational institutions, museums, and similar institutions.105 The law 

establishes a presumption that the CMO that administers rights in such works is entitled to do so 

with respect to works owned by non-members, provided that the relevant work has been listed in 

a government registry of out-of-commerce works, a rightsholder has not objected within six 

weeks, and the licensed uses do not serve commercial purposes.106 

102 See Ginsburg, Fair Use for Free, supra note 99, at 43. 

103 See id. at 43-44. 

104 Id. at 44. 

105 Gesetz über die Wahrnehmung von Urheberrechten und verwandten Schutzrechten 

(Urheberrechtswahrnehmungsgesetz) [UrhWahrnG] [Law on the Administration of Copyright and 

Neighboring Rights], Sept. 9, 1965, BGBL. I at 1294, last amended by Gesetz [G], Oct. 1, 2013, BGBL. I at 3728, 

art. 2, §13d(1), cited provision translated at 

https://www.vgwort.de/fileadmin/pdf/allgemeine_pdf/out_of_commerce_law_2013.pdf (unofficial 

translation); see also Press Release,VG WORT, New German Legislation on Orphan and Out of Commerce 

Works, http://www.vgwort.de/fileadmin/pdf/allgemeine_pdf/German_legislation_on_orphan_and_out-ofcommerce_works.pdf. 

106 Urheberrechtswahrnehmungsgesetz [UrhWahrnG] [Law on the Administration of Copyright and 

Neighboring Rights], Sep. 9, 1965, BGBL. I at 1294, last amended by Gesetz [G], Oct. 1, 2013, BGBL. I at 3728, 

art. 2, §13d(1). 

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U.S. Copyright Office Orphan Works and Mass Digitization 

6. United Kingdom 

Like the United States, the United Kingdom has considered proposed solutions to the 

orphan works problem for several years.107 The issue was a key focus of an independent review 

of the U.K. intellectual property system launched by Prime Minister David Cameron in 

November 2010.108 Tȶȳ ɀȳɄȷȳɅ ȾȯȼȳȺȂɁ Mȯɀȱȶ ˽˻˼˼ ɀȳȾȽɀɂ ʠȹȼȽɅȼ ȯɁ ɂȶȳ HȯɀȵɀȳȯɄȳɁ RȳȾȽrt) 

ȲȳɁȱɀȷȰȳȲ ɂȶȳ ȽɀȾȶȯȼ ɅȽɀȹɁ ȾɀȽȰȺȳȻ ȯɁ ȃɂȶȳ ɁɂȯɀȹȳɁɂ ȴȯȷȺɃɀȳ Ƚȴ ɂȶȳ ȱȽȾɇɀȷȵȶɂ ȴɀȯȻȳɅȽɀȹ ɂȽ 

ȯȲȯȾɂʕȄ ȯȼȲ ȱȷɂȳȲ ȳɄȷȲȳȼȱȳ ɂȶȯɂ ɂȶȳ ȽɀȾȶȯȼȷȼȵ ɀȯɂȳ Ȼȯɇ Ȱȳ around forty percent in some EU 

archives.109 ȃAɁ ȺȽȼȵ ȯɁ ɂȶȷɁ Ɂɂȯɂȳ Ƚȴ ȯȴȴȯȷɀɁ ȱȽȼɂȷȼɃȳɁʕȄ ɂȶȳ ɀȳȾȽɀɂ ɅȯɀȼȳȲʕ ȃȯɀȱȶȷɄȳɁ ȷȼ ȽȺȲ 

formats (for instance celluloid film and audio tape) [will] continue to decay, and further delay to 

ȲȷȵȷɂȷɁȯɂȷȽȼ ȻȳȯȼɁ ɁȽȻȳ ɅȷȺȺ Ȱȳ ȺȽɁɂ ȴȽɀ ȵȽȽȲʔȄ110 The report recommended a two-pronged 

ȺȳȵȷɁȺȯɂȷɄȳ ɀȳɁȾȽȼɁȳ ɂȶȯɂ ɅȽɃȺȲ ȃȳɁɂȯȰȺȷɁȶ ȳɆɂȳnded collective licensing for mass licensing of 

ȽɀȾȶȯȼ ɅȽɀȹɁʕ ȯȼȲ ȯ ȱȺȳȯɀȯȼȱȳ ȾɀȽȱȳȲɃɀȳ ȴȽɀ ɃɁȳ Ƚȴ ȷȼȲȷɄȷȲɃȯȺ ɅȽɀȹɁʔȄ111 

In 2013, the U.K. largely adopted these recommendations through amendments to its 

Copyright, Designs and Patents Act of 1988.112 The legisȺȯɂȷȽȼȂɁ ȷȼȲȷɄȷȲɃȯȺ-use provisions 

authorize the Secretary of State to grant non-exclusive licenses for the use of orphan works where 

the prospective user has conducted a diligent search but has failed to locate the copyright 

owner.113 This government licensing framework is intended to operate in tandem with the 

narrower orphan works exceptions established by the EU Directive and transposed into U.K. 

law.114 As explained by the U.K. Intellectual Property Office (U.K. IPO), the licensing scheme 

ȯȺȺȽɅɁ ȃȯȺȺ ɂɇȾes of work to be used for potentially any use that a copyright work can be licensed 

107 See, e.g., ANDREW GOWERS, GOWERS REVIEW OF INTELLECTUAL PROPERTY 69-72 (2006), available at 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228849/0118404830.pdf 

(explaining the issue as it applied to the U.K. in 2006). 

108 See Press Release, U.K. Intell. Prop. Office, Independent Review Launched to Ensure IP System Promotes 

Growth (Nov. 4, 2010), available at https://www.gov.uk/government/news/independent-review-launchedto-ensure-ip-system-promotes-growth. 

109 HARGREAVES, supra note 2, at 38. 

110 Id. 

111 Id. at 40. 

112 Enterprise and Regulatory Reform Act 2013, c. 24, § 77. 

113 Id. 

114 See Copyright and Rights in Performances (Certain Permitted Uses of Orphan Works) Regulations 2014, 

S.I. 2014/2861. 

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U.S. Copyright Office Orphan Works and Mass Digitization 

ȴȽɀʕ Ȱɇ ȯȼɇ ɂɇȾȳ Ƚȴ ȺȷȱȳȼɁȳȳ Ʌȷɂȶȷȼ ɂȶȳ UKʕȄ ɅȶȷȺȳ ɂȶȳ DȷɀȳȱɂȷɄȳ ȃȯȺȺȽɅɁ ȽȼȺɇ ȼȽȼ-commercial use 

Ȱɇ ɁȾȳȱȷȴȷȱ Ȱȳȼȳȴȷȱȷȯɀɇ ȽɀȵȯȼȷɁȯɂȷȽȼɁʕȄ ȯȼȲ ȱȽɄȳɀɁ ȽȼȺɇ ɂȶȳ ɀȷȵȶɂɁ Ƚȴ ɀȳȾɀȽduction and making 

available.115 

Following a public comment process, regulations governing the issuance and terms of 

individual orphan works licenses were implemented on October 29, 2014.116 The regulations 

define a diligent search to include, at a minimum, consultation of an orphan works register to be 

established by the Comptroller-General of Patents, Designs and Trade Marks, databases 

maintained by the EU Office for Harmonization in the Internal Market, and any relevant sources 

listed in a schedule to the legislation.117 In collaboration with stakeholders in various creative 

sectors, the U.K. IPO has developed a series of industry-specific guides to assist prospective users 

in conducting diligent searches.118 Under the regulations, an applicant who demonstrates such a 

search may be issued a non-exclusive license to use the work within the U.K. for up to seven 

years, with the possibility of renewal.119 License fees are set by the Comptroller-General based on 

fees for similar works and uses, and must be retained by the agency for eight years.120 If no 

rightsholder claims his or her fees within that time, the agency may use them to fund social, 

cultural, and educational activities.121 

Tȶȳ ˽˻˼˾ ȺȳȵȷɁȺȯɂȷȽȼȂɁ ECL ȾɀȽɄȷɁȷȽȼɁ ȳɁɂȯȰȺȷɁȶ ȯ ȾɀȽȱȳɁɁ ɂȶɀȽɃȵȶ Ʌȶȷȱȶ ȯ CMO Ȼȯɇ Ȱe 

authorized to license certain uses of copyrighted works owned by non-members of the 

115 U.K. INTELL. PROP. OFFICE, GOVERNMENT RESPONSE TO THE TECHNICAL CONSULTATION ON ORPHAN WORKS 

4-5 (2014), available at 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/315078/Orphan_Works_Go 

vernment_Response.pdf. 

116 Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014, S.I. 2014/2863 

ʠȃUʔKʔ OɀȾȶȯȼ WȽɀȹɁ LȷȱȳȼɁȷȼȵ RȳȵɃȺȯɂȷȽȼɁȄʡʔ 

117 Id. art. 2; art. 4, ¶¶ 3, 5; art. 5. 

118 See Orphan Works Diligent Search Guidance for Applicants, U.K. INTELL. PROP. OFFICE (Sept. 17, 2014), 

https://www.gov.uk/government/publications/orphan-works-diligent-search-guidance-for-applicants. 

119 U.K. Orphan Works Licensing Regulations, S.I. 2014/2863, art. 6, ¶ 2; art. 8; see also Intellectual Property – 

Guidance: Copyright: Orphan Works, U.K. INTELL. PROP. OFFICE (May 12, 2015), 

https://www.gov.uk/copyright-orphan-works. 

120 U.K. Orphan Works Licensing Regulations, S.I. 2014/2863, art. 10. 

121 Id. art. 13, ¶¶ 1-2. 

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U.S. Copyright Office Orphan Works and Mass Digitization 

organization.122 A CMO can seek such authority from the Secretary of State, and any 

authorization must specify the types of work to which it applies and the particular acts that the 

CMO is permitted to license.123 The law gives the Secretary broad authority to issue 

implementing regulations on a range of matters, including qualification requirements for CMOs, 

the treatment of royalties, and the maintenance of registries.124 Such regulations may provide 

only for non-exclusive licenses and must give copyright owners the right to opt out.125 An initial 

set of regulations developed by the U.K. IPO under this authority took effect on October 1, 2014, 

although no CMOs of which we are aware have sought to apply the ECL provisions to date.126 

7. Canada 

The Canadian Copyright Act (Section 77) permits users to file applications with the 

Copyright Board of Canada for the use of certain types of orphan works on a case-by-case basis. 

If an applicant demonstrates that it made a reasonable effort to locate the rightsholder and the 

rightsholder cannot be located, the Board will approve the request and issue a conditional nonexclusive license.127 Only published works and certain types of fixations are eligible to be 

licensed.128 The Copyright Board may issue licenses permitting certain uses including 

reproduction, publication, performance, and distribution.129 In June 2012, Canada passed 

amendments to its Copyright Act that included an expansion of the exception for nonprofit 

122 Enterprise and Regulatory Reform Act, 2013, sec. 77(3), § 116B. 

123 Id. sec. 77(3), § 116B(2). 

124 Id. sec. 77(3), § 116C. 

125 Id. sec. 77(3), § 116B(3), (4). 

126 See U.K. ECL Regulations, S.I. 2014/2588; see also U.K. INTELL. PROP. OFFICE, EXTENDING THE BENEFITS OF 

COLLECTIVE LICENSING (2013), available at https://www.gov.uk/government/consultations/extending-thebenefits-of-collective-licensing; U.K. INTELL. PROP. OFFICE, GOVERNMENT RESPONSE TO THE TECHNICAL 

CONSULTATION ON DRAFT SECONDARY LEGISLATION FOR EXTENDED COLLECTIVE LICENSING (ECL) SCHEMES 

(2014), available at 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/309883/governmentresponse-ȳȱȺʔȾȲȴ ʠȃU.K. GOVERNMENT RESPONSEȄʡʔ 

127 Copyright Act, R.S.C. 1985, c. C-42, s. 77. 

128 Id. s. 77(1). 

129 Id. ss. 3, 15, 18, 21, 77(1). 

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U.S. Copyright Office Orphan Works and Mass Digitization 

organizations acting for the benefit of persons with perceptual disabilities to cover cross-border 

exchanges of orphan works that have been translated into a print-disabled format.130 

The 2006 Orphan Works Report identified some of ɂȶȳ CȯȼȯȲȷȯȼ ɁɇɁɂȳȻȂɁ ȰɃɀȲȳȼɁʕ ȯȼȲ 

several studies have noted that it is rarely used.131 To date, fewer than 300 licenses have been 

issued under this system.132 

8. Japan 

The Copyright Law of Japan (Article 67) permits users to apply to the Commissioner of 

the Agency of Cultural Affairs to use certain types of orphan works.133 The applicant must have 

been unable to find or determine the rightsholder after due diligence and must deposit 

compensation for the benefit of the rightsholder.134 The provision only allows the compulsory 

licensing of works that have been made public or those for which it is clear that they have been 

offered to or made available to the public for a considerable period of time.135 The amount of 

compensation to be deposited for each application is decided by the Agency of Cultural Affairs, 

in consultation with the Culture Council, and must correspond to the ordinary royalty rate.136 

130 Id. ss. 32, 32.01; Copyright Modernization Act, S.C. 2012, c. 20, ss. 36-37. 

131 2006 REPORT, supra note 9, at 82-83; see also AGNIESZKA VETULANI, EUROPEAN COMMISSION DG 

INFORMATION SOCIETY AND MEDIA UNIT E4: DIGITAL LIBRARIES AND PUBLIC SECTOR INFORMATION, THE 

PROBLEM OF ORPHAN WORKS IN THE EU: AN OVERVIEW OF LEGISLATIVE SOLUTIONS AND MAIN ACTIONS IN THIS 

FIELD 9-10 (2008), available at 

http://ec.europa.eu/information_society/newsroom/image/report_orphan_works_2008_6591.pdf. 

132 See Decisions – Unlocatable Copyright Owners, COPYRIGHT BOARD OF CANADA, http://www.cbcda.gc.ca/unlocatable-introuvables/licences-e.html. 

133 Copyright Act, Law No. 48 of 1970, as amended up to Law No. 35 of 2014, art. 67, para. 1, translated at 

http://www.cric.or.jp/english/clj/doc/20150227_October,2014_Copyright_Law_of_Japan.pdf (unofficial 

translation). 

134 Id. ȃDɃȳ ȲȷȺȷȵȳȼȱȳȄ ȷȼ ȴȷȼȲȷȼȵ ȯȼȲ ȯɂɂȳȻȾɂȷȼȵ ɂȽ ȱȽȼɂȯȱɂ ɂȶȳ ȱȽȾɇɀȷȵȶɂ ȽɅȼȳɀ ȷȼȱȺɃȲȳɁ ɀȳɄȷȳɅȷȼȵ 

publications and other materials that publicize information relating to copyright owners, inquiring with 

copyright management organizations and other organizations that hold copyright owner information, and 

advertising in a daily newspaper for information about the copyright owner. Enforcement Order of the 

Copyright Act, Cabinet Order No. 335 of 1970, as amended up to Cabinet Order No. 299 of 2009, art. 7-7 

(translation unavailable). 

135 Copyright Act, Law No. 48 of 1970, art. 67, para. 1. 

136 Id. art. 67, para. 1; art. 71. 

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U.S. Copyright Office Orphan Works and Mass Digitization 

Copies of works reproduced under Article 67 must indicate that they were licensed under that 

provision as well as the date when the license was issued.137 From 1972 to 2010, only eighty-two 

compulsory licenses were granted.138 

9. Korea 

Under the Korean Copyright Act (Article 50), users may apply for a compulsory license 

from the Minister of Culture, Sports and Tourism to use certain types of orphan works.139 The 

ɅȽɀȹɁ ȻɃɁɂ ȶȯɄȳ Ȱȳȳȼ ȃȻȯȲȳ ȾɃȰȺȷȱȄ ȷȼ ȽɀȲȳɀ ɂȽ Ȱȳ ȳȺȷȵȷȰȺȳ ɂȽ Ȱȳ ȺȷȱȳȼɁȳȲʔ140 The applicant must 

ȲȳȾȽɁȷɂ ȱȽȻȾȳȼɁȯɂȷȽȼ ȯȼȲ ȲȳȻȽȼɁɂɀȯɂȳ Ƚȼ ɂȶȳ ȯȾȾȺȷȱȯɂȷȽȼ ɂȶȳ ȃȱȽȼɁȷȲȳɀȯȰȺȳ ȳȴȴȽɀɂɁȄ ɂȯȹȳȼ Ȱɇ ɂȶȳ 

applicant to identify the rightsholder or ɂȶȳ ɀȷȵȶɂɁȶȽȺȲȳɀȂɁ ȾȺȯȱȳ Ƚȴ ɀȳɁȷȲȳȼȱȳʔ141 The amount of 

compensation is set by the market and determined by the Korea Copyright Commission.142 After 

receiving approval and depositing compensation, the applicant must indicate on any copies made 

pursuant to a compulsory license that they were made with the approval of the Minister of 

137 Id. art. 67, para. 3. 

138 Of these eighty-two licenses, sixty-two were granted between 1999 and 2010, and twenty licenses were 

granted between 1972 and 1998. It should be noted that these eighty-two licenses, however, represented 

158,601 individual works licensed during this period because one application can cover multiple different 

works. Marcella Favale et al., Copyright, and the Regulation of Orphan Works: A Comparative Review of Seven 

Jurisdictions and a Rights Clearance Simulation 45 (U.K. Intellectual Prop. Office, CREATe Working Paper 

2013/7, 2013), available at https://zenodo.org/record/8377/files/CREATe-Working-Paper-2013-07.pdf (citing 

Tetsuya Imamura, Exploitation of Orphan Works – Japanese Compulsory License System, Remarks at 

School of Law, Queen Mary, University of London & Meiji University Seminar: Recent Developments in 

Japanese Copyright Law – Exceptions and Limitations (Mar. 21, 2012)). 

139 Copyright Act of 1957, Act No. 432, Jan. 28, 1957, as amended up to Act No. 12137, Dec. 30, 2013, art. 

50(1), translated at http://elaw.klri.re.kr/eng_service/lawView.do?hseq=32626&lang=ENG (unofficial 

translation). 

140 Id. 

141 Id. ȃCȽȼɁȷȲȳɀȯȰȺȳ ȳȴȴȽɀɂɁȄ ȷȼȱȺɃȲȳ ȾȳɀɃɁȷȼȵ ɂȶȳ ȱȽȾɇɀȷȵȶɂ ɀȳȵȷɁɂȳɀʕ ȷȼȿɃȷɀȷȼȵ Ʌȷɂȶ ȱȽȾɇɀȷȵȶɂ ȻȯȼȯȵȳȻȳȼɂ 

organizations, and publicly announcing such inquiry in a daily newspaper and the website of the Ministry 

of Culture, Sports and Tourism. Enforcement Decree of the Copyright Act, Presidential Decree No. 1482, 

Apr. 22, 1959, as amended by Presidential Decree No. 23721, Apr. 12, 2012, art. 18, translated at 

http://elaw.klri.re.kr/eng_service/lawView.do?hseq=28794&lang=ENG (unofficial translation). 

142 Copyright Act of 1957, Act No. 432, art. 50(1); Jay (Young-June) Yang & Chang-Hwan Shin, Korea § 

8[2][d][iii][A], in INTERNATIONAL COPYRIGHT LAW AND PRACTICE (Paul Edward Geller & Lionel Bently eds., 

Lexis Nexis 2013). 

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U.S. Copyright Office Orphan Works and Mass Digitization 

Culture, Sports and Tourism and the date approval was issued.143 To date, only ten licenses have 

been issued under the program.144 

D. Updated Copyright Office Review 

1. Mass Digitization Discussion Document 

In light of the widespread attention on mass digitization issues sparked by the Google 

Books and HathiTrust cases, and to facilitate further dialogue among stakeholders, the Copyright 

Office issued a publication in October 2011 entitled Legal Issues in Mass Digitization: A Preliminary 

Analysis and Discussion Document. 145 It provided an overview of the existing mass digitization 

landscape in the United States and posed several policy questions for further consideration, 

including whether ȃɂȶȳɀȳ ʢȷɁʣ ȯ ɀȳȯɁȽȼ ȴȽɀ CȽȼȵɀȳɁɁ ɂȽ ȳȼȱȽɃɀȯȵȳ ɂȶȳ ȲȷȵȷɂȷɈȯɂȷȽȼ Ƚȴ ȱȽȾɇɀȷȵȶɂȳȲ 

ȰȽȽȹɁ Ȱɇ ɃɁȳɀ ȵɀȽɃȾɁʕȄ Ƚɀ Ʌȶȳɂȶȳɀ ɁɃȱȶ ȯȱɂȷɄȷɂȷȳɁ ɁȶȽɃȺȲ ȷȼɁɂȳȯȲ Ȱȳ ȃȺȳȴɂ ɂȽ ɂȶȳ ȻȯɀȹȳɂȾȺȯȱȳ ȯȼȲ 

ɂȶȳ ȱȽȾɇɀȷȵȶɂ ȺȯɅ ȯɁ ȷɂ ȱɃɀɀȳȼɂȺɇ ȳɆȷɁɂɁʔȄ146 In addition, the Office suggested ɂȶȯɂ ȃCȽȼȵɀȳɁɁ Ȼȯɇ 

want to explore orphan works in the context of large-scale digitization projects, addressing 

questions such as whether there should be more lenient or more stringent search requirements for 

ɂȶȳɁȳ ɂɇȾȳɁ Ƚȴ ɃɁȳɁʔȄ147 Noting the challenge of clearing rights on a case-by-case basis in that 

ȱȽȼɂȳɆɂʕ ɂȶȳ Oȴȴȷȱȳ ȽȰɁȳɀɄȳȲ ɂȶȯɂ ȃȷɂ Ȼȯɇ Ȱȳ ȶȳȺȾȴɃȺ ɂȽ ȱȽȼɁȷȲȳɀ Ʌȶȳɂȶȳɀ Ƚɂȶȳɀ ȺȷȱȳȼɁȷȼȵ ȻȽȲȳȺɁ 

might be used – such as voluntary collective licensing, mandatory collective licensing, or even 

statutory licensing – at least for facilitating certain projects and transactions of interest and 

ȷȻȾȽɀɂȯȼȱȳ ɂȽ ɂȶȳ ȾɃȰȺȷȱʔȄ148 

143 Copyright Act of 1957, Act No. 432, art. 50(2). 

144 See 이용승인신청공고 [Posting of Applications for Use], KOREA COPYRIGHT COMMȂN, FINDCOPYRIGHT, 

https://www.findcopyright.or.kr/statBord/statBo03List.do?bordCd=3. 

145 U.S. COPYRIGHT OFFICE, LEGAL ISSUES IN MASS DIGITIZATION: A PRELIMINARY ANALYSIS AND DISCUSSION 

DOCUMENT (2011), available at 

ȶɂɂȾʖ//ɅɅɅʔȱȽȾɇɀȷȵȶɂʔȵȽɄ/ȲȽȱɁ/ȻȯɁɁȲȷȵȷɂȷɈȯɂȷȽȼ/USCOMȯɁɁDȷȵȷɂȷɈȯɂȷȽȼ_OȱɂȽȰȳɀ˽˻˼˼ʔȾȲȴ ʠȃLEGAL ISSUES 

IN MASS DIGITIZATIONȄʡʔ 

146 Id. at 15-16. 

147 Id. at 28. 

148 Id. at 29. 

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U.S. Copyright Office Orphan Works and Mass Digitization 

2. Current Study 

In 2012, the Office began a second formal study of orphan works to examine the issue in 

light of the various domestic and international developments that had occurred since 

consideration of the 2008 bills. The Office published a general Notice of Inquiry in October 2012, 

seeking public comments on what had changed in the legal and business environments that 

might be relevant to a resolution of the problem and what additional legislative, regulatory, or 

voluntary solutions deserved deliberation. 149 In addition to requesting views on case-by-case 

uses of orphan works, the Notice asked commenters to address potential orphan works solutions 

in the context of mass digitization.150 In response, the Office received ninety-one initial comments 

and eighty-nine reply comments from a broad range of interested parties. 

The Office then published a Notice of Inquiry in February 2014 seeking additional 

comments on the issues raised in the public comments and inviting interested parties to 

participate in a series of public roundtable discussions.151 The roundtables, held on March 10-11, 

2014 in Washington, D.C., addressed many of the issues raised in the public comments: (1) the 

need for legislation in light of recent legal and technological developments; (2) defining a good 

ȴȯȷɂȶ ȃɀȳȯɁȽȼȯȰȺɇ ȲȷȺȷȵȳȼɂ ɁȳȯɀȱȶȄ ɁɂȯȼȲȯɀȲʗ ʠ˾ʡ ɂȶȳ ɀȽȺȳ Ƚȴ ȾɀȷɄȯɂȳ ȯȼȲ ȾɃȰȺȷȱ ɀȳȵȷɁɂɀȷȳɁʗ ʠ˿ʡ ɂȶȳ 

types of works subject to any orphan works legislation, including issues related specifically to 

photographs; (5) the types of users and uses subject to any orphan works legislation; (6) remedies 

and procedures regarding orphan works; (7) mass digitization, generally; (8) extended collective 

licensing and mass digitization; and (9) the structure and mechanics of a possible extended 

collective licensing system in the United States. The Office thereafter received 166 additional 

comments, again representing a wide spectrum of views and perspectives. 

II. ORPHAN WORKS 

A. Consequences of Orphan Works 

As stated in the Executive Summary, the aspect of this Report addressing orphan works 

does so in the context of case-by-case rather than systematic uses. Currently, anyone using an 

orphan work runs the risk that the copyright owner may step forward and bring an infringement 

149 Orphan Works and Mass Digitization, 77 Fed. Reg. 64,555 (Oct. 22, 2012). 

150 Id. at 64,560-61. 

151 Orphan Works and Mass Digitization: Request for Additional Comments and Announcement of Public 

Roundtables, 79 Fed. Reg. 7706 (Feb. 10, 2014). 

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U.S. Copyright Office Orphan Works and Mass Digitization 

ȯȱɂȷȽȼ ȴȽɀ ɁɃȰɁɂȯȼɂȷȯȺ ȲȯȻȯȵȳɁʕ ȯɂɂȽɀȼȳɇɁȂ ȴȳȳɁʕ ȯȼȲ/Ƚɀ ȷȼȸɃȼȱɂȷɄȳ ɀȳȺȷȳȴ ɃȼȺȳɁɁ ȯ ɁȾȳȱȷȴȷȱ ȳɆȱȳȾɂȷȽȼ 

or limitation to copyright applies.152 In these cases, productive and beneficial uses of works may 

be inhibited not because the copyright owner has asserted his or her exclusive rights in the work, 

or because the user and owner cannot agree on the terms of a license, but merely because the user 

cannot identify and/or locate the owner and therefore cannot determine whether, or under what 

conditions, he or she may make use of the work. 

The uncertainty surrounding the ownership status of orphan works does not serve the 

objectives of the copyright system. For good faith users, orphan works are a frustration, a liability 

risk, and a major cause of gridlock in the digital marketplace.153 The consequences of this 

uncertainty reverberate through all types of uses and users, all types and ages of works, and 

across all creative sectors.154 By electing to use a work without permission, users run the risk of 

an infringement suit resulting in litigation costs and possible damages. By foregoing use of these 

ɅȽɀȹɁʕ ȯ Ɂȷȵȼȷȴȷȱȯȼɂ Ⱦȯɀɂ Ƚȴ ɂȶȳ ɅȽɀȺȲȂɁ ȱɃȺɂɃɀȯȺ ȶȳɀȷɂȯȵȳ ȳȻȰȽȲȷȳȲ ȷȼ ȱȽȾɇɀȷȵȶɂ-protected works 

may not be exploited and may therefore fall into a so-ȱȯȺȺȳȲ ȃ˽˻ɂȶ-century digital ȰȺȯȱȹ ȶȽȺȳʔȄ155 

152 The Copyright Act, 17 U.S.C. § 101 et seq., includes several exceptions and limitations that would allow 

use of orphan works under certain circumstances, such as Section 107 (fair use), Section 108(h) (use by 

libraries during the last twenty years of the copyright term), and Section 115(b) (statutory license to 

distribute phonorecords). The Office concluded in its 2006 Orphan Works Report, however, that existing 

provisions would not address many orphan works situations. See 2006 REPORT, supra note 9, at 7. The role 

of fair use in the orphan works context is discussed in Part II.B.1.a, infra. 

153 ȃʢNʣȳȷɂȶȳɀ ʔ ʔ ʔ ȽɀȾȶȯȼɁ Ƚɀ Ȼȯɀȹȳɂ ȵɀȷȲȺȽȱȹʕ ȯɀȳ ȵȽȽȲ ȴȽɀ ɂȶȳ ȱȽȾɇɀȷȵȶɂ ɁɇɁɂȳȻʔ Iɂ ȷɁ ȼȽɂ ȵȽȽȲ ȴȽɀ ɂȶȳ ɃɁȳɀɁ 

and authors who would otherwise engage in transactions, but perhaps more importantly, it does not 

ȳȼȵȳȼȲȳɀ ȴȯȷɂȶ ȷȼ ɂȶȳ ȽȾȳɀȯɂȷȽȼ Ƚȴ ɂȶȳ ȺȯɅ Ƚɀ ɀȳɁȾȳȱɂ ȴȽɀ ɂȶȳ ȵȽȯȺɁ Ƚȴ ɂȶȳ ȺȯɅʔȄ Mȯɀȷȯ Aʔ PȯȺȺȯȼɂȳʕ Orphan 

Work & Mass Digitization: Obstacles & Opportunities, 27 BERKELEY TECH. L.J. 1251, 1252 (2012). 

154 See, e.g., Berkeley Digital Library Copyright Project Initial Comments at 12-14; Carnegie Mellon 

UȼȷɄȳɀɁȷɂɇ LȷȰɀȯɀȷȳɁʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ 

Notice of Inquiry aɂ ȁ ʠJȯȼʔ ˾˻ʕ ˽˻˼˾ʡ ʠȃCȯɀȼȳȵȷȳ MȳȺȺȽȼ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡʗ KȳɀȼȽȱȶȯȼ Cȳȼɂȳɀ ȴȽɀ LȯɅʕ 

Media and the Arts, Columbia Univ. School of Law, Reply Comments Submitted in Response to U.S. 

CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˾-˿ ʠMȯɀʔ ȁʕ ˽˻˼˾ʡ ʠȃKȳrnochan Center Reply 

CȽȻȻȳȼɂɁȄʡʔ 

155 MAURIZIO BORGHI & STAVROULA KARAPAPA, COPYRIGHT AND MASS DIGITIZATION: A CROSSJURISDICTIONAL PERSPECTIVE 70 (2013) (internal quotation marks omitted); see also James Boyle, A Copyright 

Black Hole Swallows Our Culture, FINANCIAL TIMES, Sept. 6, 2009, http://www.ft.com/cms/s/0/6811a9d4-9b0f11de-a3a1-00144feabdc0.html#axzz3bSxDtvBz; Rebecca J. Rosen, The Missing 20th Century: How Copyright 

Protection Makes Books Vanish, THE ATLANTIC, Mar. 30, 2012, 

http://www.theatlantic.com/technology/archive/2012/03/the-missing-20th-century-how-copyrightprotection-makes-books-vanish/255282/; see also Christopher Buccafusco & Paul J. Heald, Do Bad Things 

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U.S. Copyright Office Orphan Works and Mass Digitization 

This outcome is difficult to reconcile with the objectives of the copyright system and may unduly 

restrict access to millions of works that might otherwise be available to the public. As one 

ɀȳȾɀȳɁȳȼɂȯɂȷɄȳ Ƚȴ ȲȽȱɃȻȳȼɂȯɀɇ ȴȷȺȻȻȯȹȳɀɁ ɀȳȱȳȼɂȺɇ ɂȳɁɂȷȴȷȳȲ ȰȳȴȽɀȳ CȽȼȵɀȳɁɁʕ ȃʢɂʣȶȳ ȽɀȾȶȯȼ 

works problem is perhaps the single greatest impediment to creating new works that are now 

possible due to [new digital technologies]. The United States desperately needs a workable 

ɁȽȺɃɂȷȽȼʔȄ156 

The precise size and scope of the orphan works problem is difficult to gauge, in part 

because works are deemed orphan only after an unsuccessful and often costly search is 

conducted, and thus projects relying upon orphan works often do not go forward. There is, 

however, substantial evidence that the orphan works problem remains significant. Some of the 

most recent research into the contours of the issue comes from the United Kingdom and the 

European Union.157 Data gathered from U.K. cultural institutions through a 2011-2012 

stakeholder consultation on orphan works demonstrates that the issue is pervasive across the 

spectrum of cultural institutions and the types of works held.158 Similar studies undertaken in the 

European Union also indicate that there is a significant orphan works problem throughout 

Europe.159 

Happen When Works Enter the Public Domain?: Empirical Tests of Copyright Term Extension, 28 BERKELEY TECH. 

L.J. 1 (2013). 

156 Preservation and Reuse of Copyrighted Works, supra note 2, at 81 ʠɁɂȯɂȳȻȳȼɂ Ƚȴ MȷȱȶȯȳȺ Cʔ DȽȼȯȺȲɁȽȼʕ IȼɂȂȺ 

DȽȱɃȻȳȼɂȯɀɇ AɁɁȂȼ ȯȼȲ FȷȺȻ IȼȲȳȾȳȼȲȳȼɂʡʔ 

157 See U.K. INTELL. PROP. OFFICE, IMPACT ASSESSMENT (FINAL), ORPHAN WORKS 10-11 (2012), available at 

http://webarchive.nationalarchives.gov.uk/20140603093549/http://www.ipo.gov.uk/consult-ia-bis1063­

20120702.pdf ʠȃ˽˻˼˽ UʔKʔ IMPACT ASSESSMENTȄʡ. 

158 The estimated numbers of orphans are staggering: National History Museum, London – 25% of its 

500,000 item collection; European Film Archives – 4-7% of its 3,200,000 titles; Imperial War Archive – 20% of 

its 11,000,000 item collection; National History Museum, London – 20% of 1,000,000 book collection; 

National Library of Scotland – around 25% of 1,500,000 book collection. 2012 U.K. IMPACT ASSESSMENT at 

10. The 2012 Impact Assessment is largely consistent with a 2009 U.K. study concluding that approximately 

thirteen million orphan works exist in the United Kingdom, with the number possibly ballooning as high as 

fifty million. JISC, IN FROM THE COLD: AN ASSESSMENT OF THE SCOPE OF ʦORPHAN WORKSȂ AND ITS IMPACT ON 

DELIVERY OF SERVICES TO THE PUBLIC 18 (2009), 

http://webarchive.nationalarchives.gov.uk/20140702233839/http://www.jisc.ac.uk/media/documents/public 

ations/infromthecoldv1.pdf. 

159 See ANNA VUOPALA, ASSESSMENT OF THE ORPHAN WORKS ISSUE AND COSTS FOR RIGHTS CLEARANCE 18-19 

(2010), http://www.ace-film.eu/wp-content/uploads/2010/09/Copyright_anna_report-1.pdf (estimating that 

there are nearly three million orphaned books in the EU). 

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U.S. Copyright Office Orphan Works and Mass Digitization 

There is a robust body of evidence indicating that the orphan works issue in the United 

States may be just as widespread. That there is a domestic orphan works problem was confirmed 

Ȱɇ ɂȶȳ OȴȴȷȱȳȂɁ ˽˻˻ȁ RȳȾȽɀɂ ȯȼȲ ȷɁ ȯ ɄȷȳɅ ɁȶȯɀȳȲ ɅȷȲȳȺɇ ȯȻȽȼȵ ɂȶȳ ɁɂȯȹȳȶȽȺȲȳɀɁ ȱȽȼɁɃȺɂȳȲ ȴȽɀ ɂȶȷɁ 

Report, from creators160 to owners161 to users162 to academics.163 A minority of commenters argued 

that the orphan works problem is either overblown or nonexistent, depending upon the type of 

work in question,164 and promoted for purely commercial reasons.165 Nevertheless, there is 

ȱȽȻȾȳȺȺȷȼȵ ȳɄȷȲȳȼȱȳ ɂȶȯɂ ȃɂȶȳ ȽɀȾȶȯȼ ɅȽɀȹɁ ȾɀȽȰȺȳȻ ȷɁ ȼȽɂ ȽȼȺɇ ɀȳȯȺʕ ȰɃɂ Ʉȳɀɇ Ɂȷȵȼȷȴȷȱȯȼɂ ȷȼ size 

ȯȼȲ ɁȱȽȾȳʔȄ166 Beyond the substantial body of information gathered by the Copyright Office 

during the inquiry leading up to the publication of the 2006 Report,167 more recent U.S. studies 

160 See, e.g.ʕ AȻʔ SȽȱȂɇ Ƚȴ MȳȲȷȯ PȶȽɂȽȵɀȯȾȶȳɀɁ ʠȃASMPȄʡʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ 

CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˿ ʠFȳȰʔ ˿ʕ ˽˻˼˾ʡ ʠȃASMP IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡʗ CȽȾɇɀȷȵȶɂ 

AȺȺȷȯȼȱȳʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ 

ȯɂ ˽ ʠFȳȰʔ ˿ʕ ˽˻˼˾ʡ ʠȃCȽȾɇɀȷȵȶɂ AȺȺȷȯȼȱȳ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡʗ DȷɀȳȱɂȽɀɁ GɃȷȺȲ Ƚȴ AȻʔʕ Iȼȱʔ ʠȃDGAȄʡ ʒ WɀȷɂȳɀɁ 

Guild of Am., West Iȼȱʔ ʠȃWGAWȄʡʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ 

Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˾ ʠFȳȰʔ ˿ʕ ˽˻˼˾ʡ ʠȃDGA ʒ WGAW IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡʔ 

161 See, e.g.ʕ AɁɁȂȼ Ƚȴ AȻʔ PɃȰȺȷɁȶȳɀɁ ʠȃAAPȄʡʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔS. Copyright 

OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˽ ʠFȳȰʔ ˿ʕ ˽˻˼˾ʡ ʠȃAAP IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡʗ MȽɂȷȽȼ PȷȱɂɃɀȳ AɁɁȂȼ 

Ƚȴ AȻʔ ʠȃMPAAȄʡʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ 

of Inquiry at 5 (Feb. 4, 2013) ʠȃMPAA IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡʔ 

162 See, e.g.ʕ AȻʔ AɁɁȂȼ Ƚȴ LȯɅ LȷȰɀȯɀȷȳɁ ʠȃAALLȄʡ ȳɂ ȯȺʔʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ 

CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˼ ʠFȳȰʔ ˼ʕ ˽˻˼˾ʡ ʠȃAALL ȳɂ ȯȺʔ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡʗ SȽȱȂɇ 

of Am. ArchiviɁɂɁʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ 

of Inquiry ȯɂ ˼ ʠJȯȼʔ ˽Ȅʕ ˽˻˼˾ʡ ʠȃSȽȱȂɇ Ƚȴ AȻʔ AɀȱȶȷɄȷɁɂɁ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡʔ 

163 See, e.g., Berkeley Digital Library Copyright Project Initial Comments at 7-14; Inst. for Intell. Prop. & Soc. 

JɃɁɂȷȱȳ ʠȃIIPSJȄʡʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ 

Inquiry at 1-˽ ʠFȳȰʔ ˼˽ʕ ˽˻˼˽ ʢɁȷȱʣʡ ʠȃIIPSJ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡʔ 

164 See Authors Guild, Inc., Initial Comments Submitted ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ 

NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˽ ʠFȳȰʔ ˿ʕ ˽˻˼˾ʡ ʠȃAɃɂȶȽɀɁ GɃȷȺȲ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡ ʠȯɀȵɃȷȼȵ ɂȶȯɂ ɂȶȳ ȽɀȾȶȯȼ ɅȽɀȹɁ 

ȾɀȽȰȺȳȻ ȴȽɀ ȰȽȽȹɁ ȃȯȾȾȳȯɀɁ ɂȽ Ȱȳ ɄȯɁɂȺɇ ȽɄȳɀɁɂȯɂȳȲȄʡʔ 

165 See NȯɂȂȺ WɀȷɂȳɀɁ UȼȷȽȼʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ 

Notice of Inquiry at 2-˾ ʠFȳȰʔ ˿ʕ ˽˻˼˾ʡ ʠɁɂȯɂȷȼȵ ɂȶȯɂ ɂȶȳ ȽɀȾȶȯȼ ɅȽɀȹɁ ȾɀȽȰȺȳȻ ȶȯɁ Ȱȳȳȼ ȃȯȾȾɀȽȾɀȷȯɂȳȲ ȯȼȲ 

misused to serve commercial interests antithetical to those of writers and other creatoɀɁȄʡʔ 

166 David R. Hansen et al., Solving the Orphan Works Problem for the United States, 37 COLUM. J. L. & ARTS 1, 4-5 

(2013). 

167 2006 REPORT, supra note 9, at 36-39. See, e.g., Cornell Univ. Library, Initial Comments Submitted in 

Response to U.S. Copyright OȴȴȷȱȳȂɁ Jȯȼ. 26, 2005 Notice of Inquiry at 1-2 (Mar. 23, 2005). Cornell sought to 

digitize 343 in-copyright but out-of-print monographs. After spending more than $50,000 in staff time 

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U.S. Copyright Office Orphan Works and Mass Digitization 

have drawn similar conclusions. Studies of library collections of printed, published books and 

similar works estimate that between 17% and 25% of published works and as much as 70% of 

specialized collections are orphan works.168 Several commenters in the present review cited 

articles detailing the particularly acute orphan works issues faced by librarians and archivists 

working with specialized collections.169 

The prevalence of the orphan works problem breeds uncertainty. As a result, cautious 

libraries, archives, and museums may forgo socially beneficial use of orphan works, thereby 

excluding potentially important works from the public discourse and threatening to impoverish 

our national cultural heritage.170 Other types of socially beneficial uses of orphan works may be 

forestalled due to the potentially harsh consequences of statutory damages, injunctions, and 

ȯɂɂȽɀȼȳɇɁȂ ȴȳȳɁʔ FȷȺȻȻȯȹȳɀɁ Ȼȯɇ ȯɄȽȷȲ ȾɀȽȸȳȱɂɁ ɃɁȷȼȵ ȽɀȾȶȯȼ ɅȽɀȹɁ ȯɁ ȲȽȱɃȻȳȼɂȯɀɇ ɁȽɃɀȱȳ 

working on the project, Cornell could not identify or locate rightsholders for 198 (58%) of the works. See 

also Carnegie Mellon Univ. Libraries, Initial Comments Submitted in Response to UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ 

Jan. 26, 2005 Notice of Inquiry at 3 (Mar. 22, 2005). In 1999-2001, Carnegie Mellon performed a study 

regarding locating publishers of in-copyright books in order to digitize them. Only 22% of the publishers 

could be found. 

168 Michael Cairns, 580,388 Orphan Works – Give or Take, PERSONANONDATA (Sept. 9, 2009), 

http://personanondata.blogspot.com/2009/09/580388-orphan-works-give-or-take.html (concluding that up 

to 25% of the Google Books corpus (as of 2009) could be considered orphan works); see also John P. Wilkin, 

Bibliographic Indeterminacy and the Scale of Problems and Opportunities of ȄRightsȅ in Digital Collection Building, 

RUMINATIONS (Feb. 2011), available at http://www.clir.org/pubs/ruminations/01wilkin/wilkin.html 

(estimating that approximately 50% the monographs in the HathiTrust corpus are orphan works). 

169 See, e.g., Maggie Dickson, Due Diligence, Futile Effort: Copyright and the Digitization of the Thomas E. Watson 

Papers, 73 AM. ARCHIVIST 626 (2010), available at 

http://archivists.metapress.com/content/16rh811120280434/fulltext.pdf (cited by Berkeley Digital Library 

Copyright Project Initial Comments ȯɂ ˼˻ʗ SȽȱȂɇ Ƚȴ AȻʔ AɀȱȶȷɄȷɁɂɁ Initial Comments at 2; Council of Univ. 

Librarians, Univ. of California, IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ 

2012 Notice of Inquiry at 4 (Feb. 2013); Univ. of North Carolina, Chapel Hill Libraries, Initial Comments 

SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ at 2 (Feb. 4, 2013)); 

Dwayne K. Butler, Intimacy Gone Awry: Copyright and Special Collections, 52 J. LIBRARY ADMIN. 279 (2012) 

(cited by Berkeley Digital Library Copyright Project Initial Comments at 10 n.21). 

170 SȽȱȂɇ Ƚȴ AȻʔ AɀȱȶȷɄȷɁɂɁ Initial Comments ȯɂ ˿ ʠȃʢTʣȶȳ ɃȼȴȽɀɂɃȼȯɂȳ ɀȳɁɃȺɂ Ƚȴ ʢȯɀȱȶȷɄȷɁɂɁȂʣ ȱȯɃɂȷȽȼ ȷɁ ɂȶȯɂ 

the scope of online cultural resources that could be used for new studies and innovation is much smaller 

ɂȶȯȼ ȷɂ ȽɃȵȶɂ ɂȽ Ȱȳʕ ȯȼȲ ɅȽɃȺȲ Ȱȳ ȷȴ ȯȼ ȽɀȾȶȯȼ ɅȽɀȹɁ ȳɆȱȳȾɂȷȽȼ Ʌȳɀȳ ɀȳȱȽȵȼȷɈȳȲ ȷȼ ɂȶȳ ɁɂȯɂɃɂȳʔȄʡʗ AALL et 

al. Initial Comments ȯɂ ˾ ʠȃʢMʣȯȼɇ ȱȯȼȼȽɂ ȯȴȴȽɀȲ ɂȶȳ ɂȷȻȳ ȯȼȲ ȺȳȵȯȺ ȱȽɁɂɁ ȯɁɁȽȱȷȯɂȳȲ Ʌȷɂȶ Ɂȳȯɀȱȶȷȼȵ ȴȽɀ 

potential rights holders of millions of items, nor can they afford to risk exposing their institution to 

ɃȼȹȼȽɅȼ ȯȻȽɃȼɂɁ Ƚȴ ȾȽɂȳȼɂȷȯȺ ȲȯȻȯȵȳɁ ʔ ʔ ʔ ʔȄʡʔ 

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U.S. Copyright Office Orphan Works and Mass Digitization 

materials,171 businesses may elect not to commercially reissue lost works,172 and researchers may 

avoid potentially socially beneficial research activities.173 According to one scholarly 

ȱȽȻȻȳȼɂȯɂȽɀʕ ɂȶȳ ȽɀȾȶȯȼ ɅȽɀȹɁ ȾɀȽȰȺȳȻ ȃȻȯȼȷȴȳɁɂʢɁʣ ɂȶȳ ȵɀȳȯɂȳɁɂ ȽȰɁɂȯȱȺȳ ɂȽ ȱȽȾɇɀȷȵȶɂ ɁȽȱȷȯȺ 

ɃɂȷȺȷɂɇ ȷȼ ɂȶȳ ȲȳɄȳȺȽȾȳȲ ɅȽɀȺȲʔȄ174 Hence, eliminating barriers to the use of orphan works would 

yield considerable societal benefits that would reverberate throughout the copyright system, and 

would unquestionably support and promote the progress of knowledge in the United States.175 

B. Solutions to the Orphan Works Problem 

While there is general consensus that the orphan works issue is a problem in the United 

States, opinions vary as to the best way to address it. Some stakeholders insisted that the current 

judicial interpretation of fair use (Section 107), combined with the advent of several best practices 

documents, is sufficient.176 Other options are illustrated by legislation in foreign jurisdictions that 

has created a statutory exception for orphan works, or makes their use conditional upon 

government permission. A number of stakeholders believe that legislation creating a limitation 

on liability for users of orphan works remains the most appropriate solution for the United 

States.177 The limitation on liability approach was thoroughly analyzed and unanimously 

171 See IȼɂȂȺ DȽȱɃȻȳȼɂȯɀɇ AɁɁȂȼ ȳɂ ȯȺʔʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ 

Oct. 22, 2012 Notice of Inquiry ȯɂ ˽ ʠFȳȰʔ ˿ʕ ˽˻˼˾ʡ ʠȃIȼɂȂȺ DȽȱɃȻȳȼɂȯɀɇ AɁɁȂȼ ȳɂ ȯȺʔ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡ ʠȃIȼ 

many cases, filmmakers cannot even begin their projects; in more cases, the projects cannot be as rich as 

they should be; valuable information may have to be omitted; and important illustrative content cannot be 

ɃɁȳȲʔȄʡʗ see also Microsoft Corp., IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ 

22, 2012 Notice of Inquiry at 6-Ȃ ʠFȳȰʔ ˿ʕ ˽˻˼˾ʡ ʠȃEɄȳȼɂɁ ȽɄȳɀ ɂȶȳ ȾȯɁɂ ɁȳɄȳɀȯȺ ɇȳȯɀɁ ȷȼ ɂȶȳ UȼȷɂȳȲ States and 

abroad have made clear that an orphan works solution has the potential to unleash huge benefits from a 

ɅȷȲȳ ȯɀɀȯɇ Ƚȴ ȾȽɂȳȼɂȷȯȺ ɃɁȳɁʕ ɀȯȼȵȷȼȵ ȴɀȽȻ ȷȼȲȷɄȷȲɃȯȺ ɀȳȻȷɆȳɁ ɂȽ ȻȯɁɁ ȲȷȵȷɂȷɈȯɂȷȽȼʔȄʡʔ 

172 See, e.g., Tim Brooks, How Copyright Affects Reissues of Historic Recordings: A New Study, 36 ARSC J. 183 

(2005), http://www.arsc-audio.org/pdf/Brooks47872_ARSC_Fall05.pdf. 

173 See SȽȱȂɇ Ƚȴ AȻʔ AɀȱȶȷɄȷɁɂɁ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ ȯɂ ˿ ʠȲȷɁȱɃɁɁȷȼȵ ȃȯ ȵɀȽɅȷȼȵ ɃȼȲȳɀɁɂȯȼȲȷȼȵ ɂȶȯɂ ȻȽɁɂ 

archivists are overly cautious when ȷɂ ȱȽȻȳɁ ɂȽ ȱȽȾɇɀȷȵȶɂȄʡʔ 

174 IIPSJ Initial Comments at 1. 

175 See U.S. CONST. art. 1, § 8, cl. 8. 

176 See, e.g.ʕ LȷȰɀȯɀɇ CȽȾɇɀȷȵȶɂ AȺȺȷȯȼȱȳ ʠȃLCAȄʡʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ 

OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˽-4 (Jan. 14ʕ ˽˻˼˾ʡ ʠȃLCA IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡʔ 

177 See, e.g.ʕ AALL ȳɂ ȯȺʔ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ ȯɂ ˽ ʠȃWȳ ɅȽɃȺȲ ȳȼɂȶɃɁȷȯɁɂȷȱȯȺȺɇ ɁɃȾȾȽɀɂ ɂȶȳ ɀȳȷȼɂɀȽȲɃȱɂȷȽȼ Ƚȴ 

ɁȷȻȷȺȯɀ ȺȳȵȷɁȺȯɂȷȽȼ ʢɂȽ ɂȶȳ SȶȯɅȼ BȳȼɂȺȳɇ Aȱɂʣ ȷȼ ɂȶȳ ȼȳɅ CȽȼȵɀȳɁɁʔȄʡʗ IȼɂȂȺ DȽȱɃȻȳȼɂȯɀɇ AɁɁȂȼ ȳɂ ȯȺʔ IȼȷɂȷȯȺ 

CommentɁ ȯɂ Ȃ ʠȃTȶȳ CȽȾɇɀȷȵȶɂ Oȴȴȷȱȳ ɂȽȽȹ ɂȶȳ ɀȷȵȶɂ ȯȾȾɀȽȯȱȶ ȷȼ ȷɂɁ ˽˻˻ȁ Report on Orphan Works when it 

recommended solutions that require the potential user of an orphan work to conduct a reasonably diligent 

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U.S. Copyright Office Orphan Works and Mass Digitization 

ȯȲȽȾɂȳȲ Ȱɇ ɂȶȳ Sȳȼȯɂȳ ȷȼ ˽˻˻ȃʕ ȯȼȲ ȷȼ ɂȶȳ OȴȴȷȱȳȂɁ ɄȷȳɅ ȷt best balances the benefits and burdens 

of interested parties.178 The Office therefore recommends the introduction of a modified version 

of the 2008 Shawn Bentley Orphan Works Act, as set forth below. We will, however, briefly 

review the pros and cons of other proffered solutions the Office considered during the current 

inquiry. 

1. No Legislative Change 

a. Role of Fair Use 

The Copyright Office believes that fair use is a critical affirmative defense to infringement 

and, in appropriate circumstances, an important option for users of copyrighted works. Courts 

have been applying fair use to new fact patterns since Folsom v. Marsh in 1841,179 and this 

evolution remains an essential part of U.S. copyright law. Indeed, the Office successfully 

advocated for the codification of fair use in the 1976 Act.180 The Office continues to believe that 

fair use and orphan works liability limitation provisions should coexist in the statute.181 In 

practice, however, the use of most orphan works is one in which the would-be user believes it is 

search and pay reasonable compensation to resurfacing rightholders, and that limit money damages and 

ȷȼȸɃȼȱɂȷȽȼɁ ȯȵȯȷȼɁɂ ɂȶȳ ɃɁȳɀ Ƚȴ ɂȶȳ ȽɀȾȶȯȼ ɅȽɀȹ ɃȼȲȳɀ ȱȳɀɂȯȷȼ ȱȷɀȱɃȻɁɂȯȼȱȳɁʔȄʡʗ MPAA IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ ȯɂ 

6-Ȃ ʠȃʢSʣɂɀɃȱɂɃɀȷȼȵ ȽɀȾȶȯȼ ɅȽɀȹɁ ȯɁ ȯ ȲȳȴȳȼɁȷɄȳ ȺȷȻȷɂȯɂȷȽȼ ɂȽ ȯ ȱȽȾɇɀȷȵȶɂ ȱȺȯȷȻ ȱɀȳȯɂȳɁ ȯ ȻȽɀȳ ȳȴȴȷȱȷȳȼɂ, 

market-oriented, and meaningful solution to the orphan works problem than can be gained from a 

ȱȽȼɁɂɀɃȱɂ Ʌȶȷȱȶ ȷȻȾȽɁȳɁ ȺȷȻȷɂȯɂȷȽȼɁ Ƚȼ ȯ ʠȾȽɁɁȷȰȺɇ ɃȼȯɅȯɀȳʡ ȱȽȾɇɀȷȵȶɂ ȽɅȼȳɀȂɁ ɀȷȵȶɂɁʔȄʡʔ 

178 The House failed to pass the 2008 bill before recessing for the presidential election and because it was 

otherwise embroiled in economic bailout negotiations. See, e.g., Christopher Howard, Orphan Works 

Legislation Dies in House, COLLEGE ART ASSȂN NEWS (Oct. 10, 2008), 

http://www.collegeart.org/news/2008/10/10/orphan-works-legislation-dies-in-the-house/; Ryan Paul, 

ȄOrphan Worksȅ Copyright Reform Fails in Wake of Bailout Bid, ARS TECHNICA (Oct. 1, 2008), 

http://arstechnica.com/tech-policy/2008/10/orphan-works-copyright-reform-fails-in-wake-of-bailout-bid/; 

David Kravets, ȁOrphan Worksȃ Copyright Law Dies Quiet Death, WIRED (Sept. 30, 2008), 

http://www.wired.com/2008/09/orphan-works-co/. 

179 9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4901). While Folsom v. Marsh introduced what have become the 

four statutory fair use factors, the ɂȳɀȻ ȃȴȯȷɀ ɃɁȳȄ ȷɂɁȳȺȴ ȲȷȲ ȼȽɂ ȯȾȾȳȯɀ ȷȼ ɂȶȳ ȸɃȲȷȱȷȯȺ ɄȽȱȯȰɃȺȯɀɇ ɃȼɂȷȺ 

Lawrence v. Dana in 1869 (15 F. Cas. 26 (C.C.D. Mass. 1869) (No. 8136)). See Michael J. Madison, A PatternOriented Approach to Fair Use, 45 WM. & MARY L. REV. 1525, 1588 (2004). 

180 See, e.g., STAFF OF H. COMM. ON THE JUDICIARY, 87TH CONG., REP. OF THE REGISTER OF COPYRIGHTS ON THE 

GENERAL REVISION OF THE U.S. COPYRIGHT LAW 25 (Comm. Print 1961). 

181 See discussion of the fair use savings clause in Part II.B.5.e.i, infra. 

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necessary to seek permission or a license, to either ensure peace of mind, avoid unpredictability, 

or, more likely, to avoid exposure to liability. Fair use may also be of limited utility in cases 

where users need to document and articulate their basis for using a work to others in a business 

chain, or to insurers in order to obtain coverage for a project. 

Tȶȳ OȴȴȷȱȳȂɁ ˽˻˻ȁ RȳȾȽɀɂ Ƚȼ ȽɀȾȶȯȼ ɅȽɀȹɁ ȳȼɄȷɁȷȽȼȳȲ ȽȼȺɇ ȯ ȺȷȻȷɂȳȲ ɀȽȺȳ ȴȽɀ ɂȶȳ ȴȯȷɀ ɃɁȳ 

exception in solving the orphan works problem, because it defined orphan works situations in 

Ⱦȯɀɂ ȯɁ ɂȶȽɁȳ ȃɅȶȳɀȳ ɂȶȳ ɃɁȳ ȵȽȳɁ ȰȳɇȽȼȲ ȯȼɇ ȺȷȻȷɂȯɂȷȽȼ Ƚɀ exemption to copyright, such as fair 

ɃɁȳʔȄ182 In other words, if fair use applied (and of course there are many situations where its 

application is unclear), then there was no need to undertake an orphan works inquiry. Likely due 

to this formulation, the 2006 Report identified virtually no stakeholder comments arguing that 

fair use was a sufficient solution to the orphan works problem.183 

Fair use jurisprudence has evolved significantly since 2006, and paired with this evolution 

has been a change in the view of several stakeholders regarding the value of fair use vis-à-vis 

orphan works. In the consultative process surrounding the 2006 and 2008 orphan works bills, for 

example, several major American library associations, under the umbrella of the Library 

Copyright Alliance (ȃLCAȄʡʕ ȳȼɂȶɃɁȷȯɁɂȷȱȯȺȺɇ ɁɃȾȾȽɀɂȳȲ ȃȻȳȯȼȷȼȵȴɃȺ ɀȳȺȷȳȴ ȴȽɀ ɂȶȳ ɃɁȳ Ƚȴ ȽɀȾȶȯȼ 

ɅȽɀȹɁʔȄ184 Indeed, in a 2008 hearing before the House Subcommittee on the Courts, the Internet, 

and IȼɂȳȺȺȳȱɂɃȯȺ PɀȽȾȳɀɂɇʕ ɂȶȳ LCA ȱȯȺȺȳȲ ȽɀȾȶȯȼ ɅȽɀȹɁ ȷɂɁ ȃɂȽȾ ȺȳȵȷɁȺȯɂȷɄȳ ȾɀȷȽɀȷɂɇʔȄ185 

In its written statements and roundtable remarks during the present orphan works 

process, however, the LCA,186 along with some individual university libraries,187 has argued 

182 2006 REPORT, supra note 9, at 52. 

183 See id. ȯɂ Ȃ˻ ʠȼȽɂȷȼȵ ɂȶȯɂ ȃȳɁɁȳȼɂȷȯȺȺɇ ȼȽ ȱȽȻȻȳȼɂȳɀɁ ɂȽȽȹ ɂȶȳ ȾȽɁȷɂȷȽȼ ɂȶȯɂ ȳɆȷɁɂȷȼȵ ɁȽȺɃɂȷȽȼɁ Ʌȳɀȳ 

ȯȲȳȿɃȯɂȳ ɂȽ ɁȽȺɄȳ ɂȶȳ ȽɀȾȶȯȼ ɅȽɀȹɁ ȾɀȽȰȺȳȻȄʡʔ 

184 Promoting the Use of Orphan Works: Balancing the Interests of Copyright Owners and Users: Hearing Before the 

Subcomm. on the Courts, the Internet, & Intell. Prop. of the H. Comm. on the Judiciary, 110th Cong. 136 (2008) 

(statement of Mary Alice Baish on behalf of LCA). 

185 Id. 

186 In 2008 the LCA consisted of the AALL, the American Library AssociaɂȷȽȼ ʠȃALAȄʡʕ ɂȶȳ AɁɁȽȱȷȯɂȷȽȼ Ƚȴ 

Research Libraries (ȃARLȄʡʕ ɂȶȳ MȳȲȷȱȯȺ LȷȰɀȯɀɇ AɁɁȽȱȷȯɂȷȽȼ ʠȃMLAȄʡʕ ȯȼȲ ɂȶȳ SȾȳȱȷȯȺ LȷȰɀȯɀȷȳɁ 

AɁɁȽȱȷȯɂȷȽȼ ʠȃSLAȄʡʔ Id. In its 2013-14 submissions, the LCA identifies its members as the ALA, ARL, and 

Association of College and Research Libraries. See LCA Initial Comments at 1. The AALL, MLA, and SLA 

have continued to support orphan works legislation during the 2013-2014 consultation process. See AALL 

et al. Initial Comments at 1. 

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against comprehensive orphan works legislation.188 This position is likely informed in part by 

two recent court decisions that have found that GoogleȂɁ mass digitization of the contents of 

several libraries qualifies as fair use for the purposes of (1) research, full-text searching, 

preservation, and access by the print-disabled (Authors Guild, Inc. v. Google);189 and (2) full-text 

searching and access by the print-disabled (Authors Guild, Inc. v. HathiTrust).190 The LCA and 

Ƚɂȶȳɀ ɁȷȻȷȺȯɀȺɇ ɁȷɂɃȯɂȳȲ ɁɂȯȹȳȶȽȺȲȳɀɁ Ȼȯȷȼɂȯȷȼ ɂȶȯɂʕ ɃȼȺȷȹȳ ȷȼ ˽˻˻ȃʕ ȯȾȾȺɇȷȼȵ ɂȶȳ ȱȽɃɀɂɁȂ ȱɃɀɀȳȼɂ 

fair use reasoning to orphan works produces a result just as – if not more – beneficial to 

institutional users of such works as would legislation.191 They argue that if courts are allowing 

the digitization of millions of non-orphaned works under certain circumstances, then surely they 

would allow the digitization of individual orphan works, especially for noncommercial uses by 

nonprofit educational entities.192 Moreover, those arguing against orphan works legislation from 

a fair use perspective maintain that any legislation would inevitably be overly complex and 

restrictive, and thus any gain in certainty would be offset by a lack of flexibility and the burdens 

of what would constitute a reasonably diligent search.193 

The Copyright Office notes that the judiciary has yet to explicitly address how to apply 

fair use to orphan works. Thus, the informed and scholarly views of some commenters as to the 

187 See, e.g., Duke Univ. Libraries, InȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ 

˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˿ ʠJȯȼʔ ˽˻˼˾ʡʗ MȯɁɁʔ IȼɁɂʔ Ƚȴ Tȳȱȶʔ LȷȰɀȯɀȷȳɁ ʠȃMIT LȷȰɀȯɀȷȳɁȄʡʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ 

SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ Iȼquiry at 1 (undated); North 

CȯɀȽȺȷȼȯ Sɂȯɂȳ UȼȷɄʔ LȷȰɀȯɀȷȳɁʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ 

of Inquiry at 1-˽ ʠJȯȼʔ ˽˻˼˾ʡʗ UCLA LȷȰɀȯɀɇʕ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ 

Feb. 10, 2014 Notice of Inquiry at 1 (May 21, 2014). 

188 See, e.g., Preservation and Reuse of Copyrighted Works, supra note 2, at 32 (statement of James G. Neal, Vice 

PɀȳɁȷȲȳȼɂ ȴȽɀ IȼȴȽɀȻȯɂȷȽȼ SȳɀɄȷȱȳɁ ȯȼȲ UȼȷɄȳɀɁȷɂɇ LȷȰɀȯɀȷȯȼʕ CȽȺɃȻȰȷȯ UȼȷɄȳɀɁȷɂɇʡ ʠȃʢCʣȶȯȼȵȳɁ ȷȼ ɂȶȳ ȺȳȵȯȺ 

ȺȯȼȲɁȱȯȾȳ ȶȯɄȳ ȲȷȻȷȼȷɁȶȳȲ ȽɃɀ ȼȳȳȲ ȴȽɀ ȺȳȵȷɁȺȯɂȷȽȼ ȱȽȼȱȳɀȼȷȼȵ ȽɀȾȶȯȼ ɅȽɀȹɁʔȄʡʗ see also LCA Initial 

Comments at 7-ȃ ʠȃCȽȼȵɀȳɁɁ ɁȶȽɃȺȲ ȱȽȼɁȷȲȳɀ ȯ ɁȷȻȾȺȳ Ƚȼȳ Ɂȳȼɂȳȼȱȳ ȯȻȳȼȲȻȳȼɂ ɂȽ ˼Ȃ USC § Ȁ˻˿ʠȱʡʠ˽ʡ ɂȶȯɂ 

grants courts the discretion to reduce or remit statutory damages if the user conducted a reasonably 

ȲȷȺȷȵȳȼɂ Ɂȳȯɀȱȶ ȾɀȷȽɀ ɂȽ ɂȶȳ ɃɁȳʔȄʡʔ 

189 Google II, 954 F. Supp. 2d 282. As noted, Google II is on appeal to the Second Circuit. 

190 HathiTrust, 755 F.3d 87. 

191 See, e.g.ʕ LCA IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ ȯɂ Ȃ ʠȃBȳȱȯɃɁȳ Ƚȴ ɂȶese significant changes in the copyright landscape 

over the past seven years, we are convinced that libraries no longer need legislative reform in order to make 

ȯȾȾɀȽȾɀȷȯɂȳ ɃɁȳɁ Ƚȴ ȽɀȾȶȯȼ ɅȽɀȹɁʔȄʡʔ 

192 See, e.g., id. at 3. 

193 See, e.g., Tr. at 44:3-45:8 (Mar. 10, 2014) (Jonathan Band, LCA). 

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application of fair use in specific orphan works situations do not yet have as their basis any 

controlling case law. Also, fair use jurisprudence is, because of its flexibility and fact-specific 

nature, a less concrete foundation for the beneficial use of orphan works than legislation, and is 

ȯȺɅȯɇɁ ɁɃȰȸȳȱɂ ɂȽ ȱȶȯȼȵȳʔ TȶȷɁ ȴȯȱɂ ɅȯɁ ȯȱȹȼȽɅȺȳȲȵȳȲ Ȱɇ Ƚȼȳ ȱȽȻȻȳȼɂȳɀʕ ɅȶȽ ɀȳȻȯɀȹȳȲ ɂȶȯɂʕ ȃȷȴ 

the trend [in fair use decisions] changes at some point then we might have a different position. 

But right now the trend is in our favorʔȄ194 The Office does not believe that reliance on judicial 

trends, which may turn at any point, is a sufficient basis to forgo a permanent legislative solution. 

Indeed, several stakeholders from the library, archives, and museum communities prefer 

orphan works legislation to an exclusive reliance on fair use.195 ȃFȯȷɀ ɃɁȳʕȄ ȼȽɂȳȲ Ƚȼȳ ȵɀȽɃȾ Ƚȴ 

ȱȽȻȻȳȼɂȳɀɁʕ ȃȴȯȻȽɃɁ ȴȽɀ ȷɂɁ Ⱥȯȱȹ Ƚȴ ȱȳɀɂȯȷȼɂɇ ȯȼȲ ȴȽɀ ɂȶȳ ȶȷȵȶ ȱȽɁɂ Ƚȴ ȾɃɀɁɃȷȼȵ ȯɁ ȯ ȲȳȴȳȼɁȳ ȷȼ 

ȺȷɂȷȵȯɂȷȽȼʕ ȷɁ ȼȽɂ ȯ Ⱦȯȼȯȱȳȯ ȴȽɀ ȯȺȺ ȻɃɁȳɃȻ ɃɁȳɁ Ƚȴ ȽɀȾȶȯȼ ɅȽɀȹɁʔȄ196 The Copyright Office would 

add that this is particularly true if the institution in question is not protected by Eleventh 

Amendment immunity from money damages (as are state universities), or lacks the funds to 

aggressively defend its actions as fair use.197 In fact, the OȴȴȷȱȳȂɁ proposed legislative framework 

should arguably present the most attractive option to such entities, as it provides certainty for all 

users while at the same time granting libraries, archives, and museums additional protection 

through a bar on monetary relief for past uses. Moreover, even in the event that some, or even 

many, uses of orphan works by libraries and other cultural institutions would constitute a fair 

use, the number of possible users and uses go well beyond these communities. Consider, for 

example, commercial uses of orphan works, such as the use of a photograph in a book or the use 

of a book as source material for a screenplay. The current judicial fair use posture as exemplified 

194 Tr. 43:16-19 (Mar. 10, 2014) (Jonathan Band, LCA). One recent example of a fair use ruling being 

reversed on appeal was Cambridge Univ. Press v. Patton. In this case, the district court found that the 

digitization of ȱȽȾɇɀȷȵȶɂȳȲ ɁȱȶȽȺȯɀȺɇ ɅȽɀȹɁ ȴȽɀ ȃȳ-ɀȳɁȳɀɄȳɁȄ Ȱɇ GȳȽɀȵȷȯ Sɂȯɂȳ UȼȷɄȳɀɁȷɂɇ ɅȯɁʕ ȷȼ ȻȽɁɂ ȱȯɁȳɁʕ 

ȯ ȴȯȷɀ ɃɁȳʔ Tȶȳ EȺȳɄȳȼɂȶ CȷɀȱɃȷɂ ɀȳɄȳɀɁȳȲ ȯȼȲ ɀȳȻȯȼȲȳȲʕ ȴȷȼȲȷȼȵ ȷȼ Ⱦȯɀɂ ɂȶȯɂ ȃȰȳȱȯɃɁȳ DȳȴȳȼȲȯȼɂɁȂ ɃȼȾȯȷȲ 

ȱȽȾɇȷȼȵ ɅȯɁ ȼȽȼɂɀȯȼɁȴȽɀȻȯɂȷɄȳ ȯȼȲ ɂȶȳɇ ɃɁȳȲ PȺȯȷȼɂȷȴȴɁȂ Ʌorks for one of the purposes for which they are 

ȻȯɀȹȳɂȳȲʕ ɂȶȳ ɂȶɀȳȯɂ Ƚȴ Ȼȯɀȹȳɂ ɁɃȰɁɂȷɂɃɂȷȽȼ ȷɁ ɁȳɄȳɀȳʔȄ Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1283 

(11th Cir. 2014). 

195 See, e.g., AALL et al. Initial Comments at 2; Rutgers Univ. Libraries, Initial Comments in Submitted in 

RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˿ ʠFȳȰʔ ˿ʕ ˽˻˼˾ʡ ʠȃRɃɂȵȳɀɁ UȼȷɄʔ 

LȷȰɀȯɀȷȳɁ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡʗ SȽȱȂɇ Ƚȴ AȻʔ AɀȱȶȷɄȷɁɂɁ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ ȯɂ Ȃʗ Aɀɂ IȼɁɂʔ Ƚȴ CȶȷȱȯȵȽ ȳɂ ȯȺʔʕ 

Initial Comments SubmiɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˽ ʠFȳȰʔ 

˿ʕ ˽˻˼˾ʡ ʠȃAɀɂ IȼɁɂʔ Ƚȴ CȶȷȱȯȵȽ ȳɂ ȯȺʔ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡʔ 

196 Art Inst. of Chicago et al. Initial Comments at 2. 

197 See Kernochan Center, Comments Submitted in Response to UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ FȳȰʔ ˼˻ʕ ˽˻˼˿ NȽɂȷȱȳ 

Ƚȴ IȼȿɃȷɀɇ ȯɂ ˽ ʠMȯɇ ˽˼ʕ ˽˻˼˿ʡ ʠȃKȳɀȼȽȱȶȯȼ Cȳȼɂȳɀ AȲȲȷɂȷȽȼȯȺ CȽȻȻȳȼɂɁȄʡʔ 

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by HathiTrust, addressing as it does primarily noncommercial uses by noncommercial actors, does 

not easily apply to for-profit users and uses in the way that comprehensive orphan works 

legislation would.198 

Congress has a responsibility to address all of the socially beneficial uses of orphan works; 

the possibility that fair use may cover some uses by some stakeholders should not foreclose more 

broadly applicable legislation.199 Tȶȳ ȵȽɄȳɀȼȻȳȼɂȂɁ ȻȯȼȲȯɂȳ ȷɁ ɂȽ ɂȶȷȼȹ ȻȽɀȳ ȰɀȽȯȲȺɇ ȷȼ ȽɀȲȳɀ ɂȽ 

develop a solution that considers all stakeholders and the overall functioning of the system as a 

whole. 

b. Best Practices 

Advocates in favor of fair use as the sole solution to the orphan works problem often 

emphasize the role of best practices – i.e., documented standards adopted by members of an 

industry (or group of related industries) for how best to apply the fair use exception to their 

professional tasks.200 In addition to providing a compendium of current industry practice and 

guiding future behavior, many argue that best practices also serve the strategic function of 

ȲȳȻȽȼɁɂɀȯɂȷȼȵ Ʌȶȯɂ ȹȷȼȲ Ƚȴ ɃɁȳ ȷɁ ȃȼȽɀȻȯȺȄ ȷȼ ȯ ȵȷɄȳȼ ȱȽȻȻɃȼȷɂɇʕ ɂȶɃɁ ȰȽȺɁɂȳɀȷȼȵ ɂȶȳ ȷȲȳȯ ɂȶȯɂ 

such a use is a fair one.201 Hȳȼȱȳʕ ȴȽɀ ȳɆȯȻȾȺȳʕ ɂȶȳ AɁɁȽȱȷȯɂȷȽȼ Ƚȴ RȳɁȳȯɀȱȶ LȷȰɀȯɀȷȳɁȂ ˽˻˼˽ Code of 

Best Practices in Fair Use for Academic and Research Libraries contends that, in digitizing material in 

its special collections, a library is on firmer fair use ground when the item is an orphan work.202 

198 See IȼɂȂȺ DȽȱɃȻȳȼɂȯɀɇ AɁɁȂȼ ȯȼȲ FȷȺȻ IȼȲȳȾȳȼȲȳȼɂʕ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ 

OȴȴȷȱȳȂɁ FȳȰʔ ˼˻ʕ ˽˻˼˿ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˼˽ ʠMȯɇ ˽˼ʕ ˽˻˼˿ʡ ʠȃIȼɂȂȺ DȽȱɃȻȳȼɂȯɀɇ AɁɁȂȼ ȯȼȲ FȷȺȻ 

IȼȲȳȾȳȼȲȳȼɂ AȲȲȷɂȷȽȼȯȺ CȽȻȻȳȼɂɁȄʡʔ 

199 TȶȷɁ ɄȷȳɅ ȷɁ ȱȽȼɁȷɁɂȳȼɂ Ʌȷɂȶ JɃȲȵȳ CȶȷȼȂɁ ȽȾȷȼȷȽȼ ȷȼ ɀȳȸȳȱɂȷȼȵ ɂȶȳ ȾɀȽȾȽɁȳȲ GȽȽȵȺȳ BȽȽȹɁ ɁȳɂɂȺȳȻȳȼɂ ȯȼȲ 

ȷɂɁ ɂɀȳȯɂȻȳȼɂ Ƚȴ ȽɀȾȶȯȼ ɅȽɀȹɁ ȷȼ ˽˻˼˼ʖ ȃTȶȳ ȿɃȳɁɂȷȽȼɁ of who should be entrusted with guardianship over 

orphan books, under what terms, and with what safeguards are matters more appropriately decided by 

Congress than through an agreement among private, self-interested parties. Indeed, the Supreme Court 

has ȶȳȺȲ ɂȶȯɂ ʦȷɂ ȷɁ ȵȳȼȳɀȯȺȺɇ ȴȽɀ CȽȼȵɀȳɁɁʕ ȼȽɂ ɂȶȳ ȱȽɃɀɂɁʕ ɂȽ ȲȳȱȷȲȳ ȶȽɅ ȰȳɁɂ ɂȽ ȾɃɀɁɃȳ ɂȶȳ CȽȾɇɀȷȵȶɂ 

CȺȯɃɁȳȂɁ ȽȰȸȳȱɂȷɄȳɁʔȂȄ Google I, 770 F. Supp. 2d at 677 (citations omitted). 

200 See, e.g., Hansen et al., Solving the Orphan Works Problem for the United States, supra note 166, at 27-28 

(citing fair use best practices developed for communities of documentary filmmakers, poets, dance 

archivists, and others). 

201 See LCA Initial Comments at 3 (citing research indicating that judges in fair use cases take into account 

ɂȶȳ ȃȶȯȰȷɂʕ ȱɃɁɂȽȻʕ ȯȼȲ ɁȽȱȷȯȺ ȱȽȼɂȳɆɂ Ƚȴ ɂȶȳ ɃɁȳȄʡ ʠȿɃȽɂȷȼȵ PATRICIA AUFDERHEIDE & PETER JASZI, 

RECLAIMING FAIR USE 71 (2011)). 

202 See ASSȂN OF RESEARCH LIBRARIES ET AL., CODE OF BEST PRACTICES IN FAIR USE FOR ACADEMIC AND 

RESEARCH LIBRARIES 20 (2012), available at http://www.arl.org/storage/documents/publications/code-of-bestpractices-fair-ɃɁȳʔȾȲȴ ʠȃFAIR USE FOR ACADEMIC AND RESEARCH LIBRARIESȄʡ; LCA Initial Comments at 4. 

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Similarly, the December 2014 Statement of Best Practices in Fair Use of Orphan Works for Libraries & 

Archives, coordinated through affiliates of American University and the University of California at 

Berkeley, opines that the use of orphan works by memory institutions for preservation and access 

ȾɃɀȾȽɁȳɁ ȃpresent[s] a strong case under the fourth fair use factor, the impact on the market for 

ɂȶȳ ɅȽɀȹʕȄ ȰȳȱȯɃɁȳ ȃȷȴ ȽɅȼȳɀɁ ȱȯȼȼȽɂ Ȱȳ ȺȽȱȯɂȳȲʕ ɂȶȳɀȳ ȷɁ ȺȷɂɂȺȳ ȱȶȯȼȱȳ ɂȶȯɂ ɂȶȳɀȳ ȷɁ ȯ ȱɃɀɀȳȼɂʕ 

ȴɃȼȱɂȷȽȼȷȼȵ Ȼȯɀȹȳɂ ȴȽɀ ɂȶȽɁȳ ɅȽɀȹɁʔȄ203 Neither code, however, provides guidance on how a 

library should go about determining if a work is orphaned in the first place, beyond the lack of 

commercial exploitation by the owners and the likelihood that the owners could not be located.204 

Thus, even with the additional guidance best practices documents may provide, the Office 

is far from convinced that such documents can sufficiently improve the certainty of fair use in 

dealing with orphan works to completely obviate the need for legislation. The problem is that fair 

use best practices often are arrived at absent consultation with authors and other copyright 

owners, and therefore they run the risk of being more of an aspirational document – what a 

community believes fair use ought to be – than a descriptive one.205 As one commenter put it, 

ʢAʣ ȾȯɀɂȷȱɃȺȯɀ ȱȽȻȻɃȼȷɂɇȂɁ ɁȶȯɀȳȲ Ⱦȳɀȱeption that uncompensated copying and 

communication of works of authorship is necessary or desirable does not suffice to 

Ȼȯȹȳ ɂȶȳ ɃɁȳ ȃȴȯȷɀʕȄ ȾȯɀɂȷȱɃȺȯɀȺɇ ȷȴ ɂȶȳ ȷȼɂȳɀȳɁɂɁ Ƚȴ ɂȶȳ ɃɁȳɀ ȵɀȽɃȾ ȯȺȷȵȼ ȯȺȻȽɁɂ 

exclusively in favor of limiting the scope of copyright, or if authors and copyright 

ȽɅȼȳɀɁ ȶȯɄȳ Ȱȳȳȼ ȳɆȱȺɃȲȳȲ ȴɀȽȻ ɂȶȳ ȾɀȽȱȳɁɁ Ƚȴ ȴȽɀȻɃȺȯɂȷȼȵ ɂȶȳ ȃȰȳɁɂ ȾɀȯȱɂȷȱȳɁʔȄ206 

203 PROGRAM ON INFORMATION JUSTICE AND INTELLECTUAL PROPERTY, AMERICAN UNIVERSITY WASHINGTON 

COLLEGE OF LAW ET AL., STATEMENT OF BEST PRACTICES IN FAIR USE OF ORPHAN WORKS FOR LIBRARIES & 

ARCHIVES 21 (2014), available at http://www.cmsimpact.org/sites/default/files/documents/orphanworksȲȳȱ˼˿ʔȾȲȴ ʠȃFAIR USE OF ORPHAN WORKSȄʡʔ 

204 See FAIR USE FOR ACADEMIC AND RESEARCH LIBRARIES, supra note 202, at 20; see also FAIR USE OF ORPHAN 

WORKS, supra note 203, ȯɂ ȁ ȼʔ˽ ʠȃBȳȱȯɃɁȳ ɂȶȳ ȵȽȯȺ Ƚȴ ɂȶȷɁ ȾɀȽȸȳȱɂ ɅȯɁ ɂȽ ȯɀɂȷȱɃȺȯɂȳ ȶȽɅ ȴȯȷɀ ɃɁȳ ȯȾȾȺȷȳɁ ȷȼ ȯ 

wide variety of contexts with respect to collections containing orphan works, it was neither necessary nor 

ɃɁȳȴɃȺ ɂȽ ɀȷȵȷȲȺɇ ȯȲȶȳɀȳ ɂȽ ȯ ȾȯɀɂȷȱɃȺȯɀ ȲȳȴȷȼȷɂȷȽȼ Ƚȴ ʦȽɀȾȶȯȼ ɅȽɀȹɁʕȂ ɂȶȽɃȵȶ Ȼȯȼɇ ȲȳȴȷȼȷɂȷȽȼɁ ȳɆȷɁɂʔȄʡʔ 

205 See, e.g., FAIR USE OF ORPHAN WORKS, supra note 203, ȯɂ ˼˾ ʠȃTȶȷɁ ɁɂȯɂȳȻȳȼɂ ɅȯɁ ȼȽɂ ȼȳȵȽɂȷȯted with 

rightsholders that do not have as their mission to collect, preserve, and provide access to collections of 

ȻȯɂȳɀȷȯȺʔȄʡʗ FAIR USE FOR ACADEMIC AND RESEARCH LIBRARIES, supra note 202, ȯɂ ˾ ʠȃTȶȷɁ ȱȽȲȳ Ƚȴ ȰȳɁɂ 

practices was not negotiated with rights holders. . . . It presents a clear and conscientious articulation of the 

values of [the library] community, not a compromise between those values and the competing interests of 

Ƚɂȶȳɀ ȾȯɀɂȷȳɁʔȄʡʔ 

206 Kernochan Center Additional Comments at 3-4. 

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Perhaps this is no more aptly demonstrated than in the public discussions at the Copyright 

OȴȴȷȱȳȂɁ OɀȾȶȯȼ WȽɀȹɁ/MȯɁɁ DȷȵȷɂȷɈȯɂȷȽȼ ɀȽɃȼȲɂȯȰȺȳɁ in March of 2014. While many library 

stakeholders strongly supported best practice guidelines as a solution to orphan works issues, 

content owners – those who would be testing those guidelines in court – were troubled.207 

While the Copyright Office supports fair use in appropriate orphan works circumstances, 

i.e., those that meet the requirements of Section 107 as developed by the courts, it is unable to 

agree that the orphan status of a work should somehow automatically weigh in favor of fair use. 

This type of presumption of fair use in the case of orphan works would eliminate the usual 

safeguards that are so critical to a balanced copyright law and the fair use analysis in particular, 

such as the need to consider specific facts and the consideration of the standards under which a 

copyright owner should recover compensation. The point here is that fair use is not a mere 

convenience; it requires appropriate analysis. In order for the orphan status of a work to play a 

part in that analysis, there must first be an agreed-upon standard of how to determine the orphan 

ȼȯɂɃɀȳ Ƚȴ ɂȶȳ ɅȽɀȹ ȷȼ ɂȶȳ ȴȷɀɁɂ ȾȺȯȱȳʔ SȷȻȾȺɇ Ɂɂȯɂȷȼȵ ɂȶȯɂ ɂȶȳ ȽɅȼȳɀ ȃȺȷȹȳȺɇ ȱȽɃȺȲ ȼȽɂ Ȱȳ ȺȽȱȯɂȳȲȄ208 

does not provide a way to make a conclusive determination. 

A blanket fair use solution would also apply unpredictably and indefinitely, removing the 

ability of copyright owners to recover compensation in all instances, and regardless of whether 

the owner re-emerges and begins to exploit the work herself. This would be true even when the 

user has profited tremendously or is refusing to terminate the use. Moreover, without a statutory 

requirement of a diligent search preceding an orphan determination, it would likely apply 

unpredictably from circuit to circuit, as different courts would make different judgments about 

whether a work is truly orphaned, and thus how its use should be considered in the context of the 

market. In contrast, the limitations on liability described below are calibrated to be applied 

consistently to varying factual situations. 

The Copyright Office is sympathetic to the fact that fair use is evolving in the courts, and 

that some users are concerned about the impact of a legislative solution on this trajectory. As 

stated above, the Office agrees that a legislative solution must coexist without prejudice to fair use 

207 See, e.g., Tr. at 65:20-66:2 (Mar. 10, 2014) (Allȯȼ AȲȺȳɀʕ AAPʡ ʠȃI ɅȽɀɀɇ ȯȰȽɃɂ ȰȳɁɂ ȾɀȯȱɂȷȱȳɁʔ BȳɁɂ ȾɀȯȱɂȷȱȳɁ 

provide greater certainty only to the people who create the best practices and who actually favor the way 

ɂȶȳɇ ɅȽɀȹʔȄʡʔ See also Tr. at 41:21-42:4 (Mar. 10ʕ ˽˻˼˿ʡ ʠJȯȼȷȱȳ PȷȺȱȶʕ RɃɂȵȳɀɁ UȼȷɄʔ LȷȰɀȯɀȷȳɁʡ ʠȃʢBʣȳɁɂ 

ȾɀȯȱɂȷȱȳɁ ȱȯȼ ɅȽɀȹ Ʉȳɀɇ ȼȷȱȳȺɇ ȯȼȲ ɁȽȻȳɂȷȻȳɁ ɂȶȳɇ ȲȽʔ BɃɂ Ʌȶȳȼ ɂȶȳɇȂɀȳ ɃɁȳȲ ȯɁ ȯ Ʌȯɇ Ƚȴ ʦȲȽȷȼȵ ȷɂ 

ȯȼɇɅȯɇȂ ɃȼɂȷȺ ɇȽɃ ȵȳɂ ȱȯɃȵȶɂ ȯȼȲ ɂȶȳ ȽȼȺɇ ȾȳȽȾȺȳ ɅȶȽ ȱȯȼ ȱȯɂȱȶ ɇȽɃ ȯɀȳ ɅȳȯȺɂȶɇ ɀȷȵȶɂ ȶȽȺȲȳɀɁʕ ɂȶȳ Ɂɇstem 

ȶȯɁ ȰɀȽȹȳȼ ȲȽɅȼʔȄʡʔ 

208 FAIR USE FOR ACADEMIC AND RESEARCH LIBRARIES, supra note 202, at 20. 

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jurisprudence. That said, it is important to restate that recent decisions do not address the 

question of orphan works directly and, to the extent that they can be interpreted to provide 

guidance to an orphan works scenario, speak only to situations where public access is limited to 

those with print disabilities (Google, HathiTrust) or to the provision of limited numbers of small 

snippets (Google). Neither of these options satisfies the need for broad public access to orphan 

works that legislation would provide. Additionally, even when bolstered by best practices 

documents, fair use remains fundamentally an ex post determination, which provides little 

comfort to, for example, the user preparing a derivative work based on an orphan work, whose 

investment is imperiled by a reappearing copyright owner seeking an injunction.209 

2. Exception-Based Model 

The United States could establish exceptions to exclusive rights for the use of orphan 

works, much like exceptions that exist for other uses such as preservation210 or education.211 This 

model has recently received significant attention overseas, particularly in the European Union 

and Australia.212 Under an exception-based model, the use of an orphan work – provided the 

user met certain requirements, such as a reasonably diligent search – would not be considered 

copyright infringement, and thus it would not result in a remedy for the rightsholder. In 

common with the limited remedy approach, Congress could specify what works, users, and uses 

would be eligible. 

Exception-based approaches are not unhelpful when it comes to harmonization, but they 

are by nature circumscribed, in part to comply with the three-step test set forth in several 

international copyright treaties.213 Under this model, Congress could, for example, choose to 

exempt museums and libraries only for certain nonprofit uses of orphan works. Rightsholders 

would not receive compensation. Some have criticized the EU model as being of limited utility 

209 See Hansen et al., Solving the Orphan Works Problem for the United States, supra note 166, at 30. 

210 See 17 U.S.C. § 108 (Limitations on exclusive rights: Reproduction by libraries and archives). 

211 See 17 U.S.C. § 110 (Limitations on exclusive rights: Exemption of certain performances and displays). 

212 See Berkeley Digital Library Copyright Project Initial Comments at 20-22 (discussing the EU Orphan 

Works Directive and the Australian Law Reform Commission Consultation on Copyright and the Digital 

EȱȽȼȽȻɇ ȃIɁɁɃȳɁ PȯȾȳɀʕȄ ȰȽɂȶ ȴɀȽȻ ˽˻˼˽ʡʔ 

213 See WCT, supra note 16, art. 10; WPPT, supra note 16, art. 16; TRIPS Agreement, supra note 16, art. 13; 

Berne Convention, supra note 16, art. 9(2). A more detailed discussion of the three-step test is provided in 

Part III.C.10, infra. 

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because it covers a limited class of works and is restricted to a limited class of beneficiary 

institutions.214 The limited scope of the EU Directive has led some EU member states to develop 

orphan works legislation that covers broader classes of works, users, and uses. 

3. Government License Model and Small Claims 

Another potential solution is direct government licensing of orphan works. As 

implemented, such licensing, because it is done on an individualized basis, can manage a broader 

scope of works, users, and uses than can the exception-based model. Some countries, including 

Canada, Hungary, the United Kingdom, Japan, and Korea, have instituted systems whereby a 

putative user of an orphan work submits documented evidence of a failed diligent search for the 

owner to a government agency, which can then issue a license for the use.215 The user must also 

pay a fee, which is held in escrow by the agency for the owner, should he or she reappear. In 

˽˻˻ȁʕ ɂȶȳ CȽȾɇɀȷȵȶɂ Oȴȴȷȱȳ ȱȽȼɁȷȲȳɀȳȲ ɁɃȱȶ ȯ ɁɇɁɂȳȻʕ ȯȼȲ ȲȳɂȳɀȻȷȼȳȲ ɂȶȯɂ ȷɂ ɅȽɃȺȲ Ȱȳ ȃȶȷȵȶȺɇ 

ȷȼȳȴȴȷȱȷȳȼɂʔȄ216 In fact, our current review only reinforces that conclusion, as we have found 

substantially fewer than 1,000 total licenses granted to date by the five countries noted above.217 

Moreover, the model requires users to pay fees even if there is no identifiable owner. 

Some may see an escrow system as a better method of preventing unauthorized uses of 

their works of authorship.218 We believe, however, that as search capabilities grow and more 

214 See supra Part I.C.2.a (discussion of EU Orphan Works Directive); see also Berkeley Digital Library 

Copyright Project Initial Comment at 22 (citiȼȵ ȱɀȷɂȷȱȷɁȻɁ Ƚȴ ɂȶȳ DȷɀȳȱɂȷɄȳȂɁ ȺȷȻȷɂȳȲ ɁȱȽȾȳʡʔ 

215 See Copyright Act, R.S.C. 1985, c. C-˿˽ʕ Ɂʔ ȂȂ ʠCȯȼʔʡʗ ˼ȄȄȄʔ ɜɄȷ LXXVIʔ ɂʈɀɄɜȼɇ ȯ ɁɈȳɀɈʋȷ ȸȽȵɀʅȺ ʠAȱɂ LXXVIʔ 

of 1999 on Copyright), § 41/B(1) (Hung.) (effective from Oct. 29, 2014) (translation unavailable); 138/2014. 

ʠIVʔ˾˻ʔʡ KȽɀȻʔ ɀʔ ȯɈ ɉɀɄȯ Ȼʤ ȴȳȺȶȯɁɈȼɉȺɉɁának részletes szabályairól (Governmental Decree No. 138/2014 

(IV. 30.) on Detailed Regulations on the Use of Orphan Works), § 3 (Hung.) (translation unavailable); 

Enterprise and Regulatory Reform Act 2013, c. 24, § 77 (U.K.); U.K. Orphan Works Licensing Regulations, 

S.I. 2014/2863; Copyright Act, Law No. 48 of 1970, art. 67, para. 1 (Japan), translated at 

http://www.cric.or.jp/english/clj/doc/20150227_October,2014_Copyright_Law_of_Japan.pdf (unofficial 

translation); Copyright Act of 1957, Act No. 432, art. 50 (S. Kor.), translated at 

http://elaw.klri.re.kr/eng_service/lawView.do?hseq=32626&lang=ENG (unofficial translation). 

216 2006 REPORT, supra note 9, ȯɂ ˼˼˿ʔ Tȶȳ ˽˻˻ȁ RȳȾȽɀɂȂɁ ȱȽȼȱȺɃɁȷȽȼɁ Ʌȳɀȳ ȰȯɁȳȲ Ƚȼ ȯȼ ȳɆȯȻȷȼȯɂȷȽȼ Ƚȴ ɂȶȳ 

Canadian experience with government licenses; since then, both Hungary (2009) and the United Kingdom 

(2013) have established similar systems. 

217 See supra Part I.C.3 & 6-9. Note, however, that in some countries (e.g., Korea) a single license may cover 

the use of many separate orphan works. 

218 See, e.g.ʕ AɂȺȯȼɂȷȱ FȳȯɂɃɀȳ SɇȼȲȷȱȯɂȳʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ 

Oct. 22, 2012 Notice of Inquiry at 2 (undated). 

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artists make themselves known via searchable image registries like PLUS (Picture Licensing 

Universal System),219 there will be a smaller and smaller likelihood that owners of orphan works 

will not be able to be connected with those who want to use their works. Under this scenario, 

money paid into a government escrow account will not ultimately go to owners, representing 

only an unnecessary cost to orphan works users.220 

Moreover, in 2013, the Office published a major study and detailed plan for a small 

copyright claims system, which would significantly ease the path towards adjudication of 

infringement actions heretofore considered too expensive.221 It is not a coincidence that some 

copyright owners view the development of a small claims system as an important adjunct to 

orphan works legislation.222 Tȶȳ OȴȴȷȱȳȂɁ ɁȻȯȺȺ ȱȺȯȷȻɁ ȾɀȽȾȽɁȯȺ ɅȽɃld serve as an additional 

backstop for small copyright owners so that they would be more likely to recover in the event that 

infringement does occur. 

4. Extended Collective Licensing 

When an extended collective licensing regime also covers the use of orphan works, such as 

in the Nordic countries,223 users of orphan works have to pay a fee to a CMO representing 

copyright owners, which then distributes the proceeds to those owners. All uses that are covered 

by an ECL would be permitted for orphan works, regardless of whether the owners of the works 

are members of a CMO, although owners often have the ability to opt out, and thus withdraw 

their works from coverage by the license. As the mass digitization section of this Report 

indicates, the Office believes that there is a role in the United States for extended collective 

licensing in regulating the use of works of authorship on a large scale. In many cases mass 

219 See PLUS REGISTRY, www.plusregistry.org. 

220 See Tr. at 269:14-271:8 (Mar. 10, 2014) (Jeff Sedlik, PLUS Coalition). 

221 U.S. COPYRIGHT OFFICE, COPYRIGHT SMALL CLAIMS (2013), available at 

http://copyright.gov/docs/smallclaims/usco-smallcopyrightclaims.pdf. The Office recommends the 

establishment of a small claims tribunal within the Copyright Office, where cases with a value of not more 

than $30,000 would be adjudicated. Participation in such a system would be voluntary on the part of both 

plaintiff and defendant, and while the tribunal would permit the full panoply of copyright infringement 

defenses, the process itself would be streamlined in terms of discovery and motion practice. Judgments by 

a small claims tribunal would be binding on the participants, though without precedential effect. 

222 See, e.g., ASMP Initial Comments at 6. Indeed, the 2006 House bill would have directed the Copyright 

Office to conduct an inquiry on remedies for small copyright claims. H.R. 5439, 109th Cong., § 4. 

223 See discussion of Nordic ECLs in Part I.C.1, supra. 

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digitization involves corpuses containing mostly published works, for which there is a significant 

likelihood of owners being found, and thus a justification for ECL representation. For an orphan 

work, however, by definition there is no owner to be identifiable or locatable, and thus no one to 

receive a licensing fee, or to opt out of the CMO altogether. Although some stakeholders from the 

creative sector endorsed the idea of applying ECL to the orphan works problem, 224 the Office 

agrees with various commenters that ECL specifically for orphan works would end up ultimately 

as a system to collect fees, but with no one to distribute them to, potentially undermining the 

value of the whole enterprise.225 

5. Limitation on Liability Model: The Copyright Office’s Recommendation 

In the public process leading up to this Report, many stakeholders (both copyright owners 

and organizations representing the public) acknowledged that the orphan works problem cannot 

be solved without amending the Copyright Act, and that limiting the liability exposure of good 

faith users is the most appropriate form of statutory change.226 There was strong support for the 

ȯȾȾɀȽȯȱȶ ȾɀȳɄȷȽɃɁȺɇ ɂȯȹȳȼ Ȱɇ ɂȶȳ SȳȼȯɂȳȂɁ SȶȯɅȼ BȳȼɂȺȳɇ OɀȾȶȯȼ WȽɀȹɁ Aȱɂ Ƚȴ ˽˻˻ȃʔ227 This bill 

was the result of several years of legislative effort, including substantive legal analyses, 

224 See Authors Guild Additional Comments at 1. 

225 See, e.g.ʕ SȽȱȂɇ Ƚȴ AȻʔ AɀȱȶȷɄȷɁɂɁ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ ȯɂ Ȃ ʠȃʢRʣȳȾȽɁȷɂȽɀȷȳɁ ɂȶȯɂ ȯɀȳ Ɂȳȳȹȷȼȵ ɂȽ ȷȼȱɀȳȯɁȳ ȯȱȱȳɁɁ 

to our cultural heritage generally have no surplus funds. . . . Allocating those funds in advance to a 

licensing agency that will only rarely disperse them would be wasteful, and requiring such would be 

irresponsible from a policy standpoint. Extended collective licensing will only further impede 

ȼȽȼȱȽȻȻȳɀȱȷȯȺ ȯȱȱȳɁɁ ɂȽ ȽɀȾȶȯȼ ɅȽɀȹɁʔȄʡʔ 

226 See, e.g., ASMP Initial Comments at 3-4; Art Inst. of Chicago et al. Initial Comments at 2; Electronic 

Frontier Foundation & Public Knowledge, Initial Comments Submitted in Response to U.S. Copyright 

OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˿ʗ FɃɂɃɀȳ Ƚȴ MɃɁȷȱ CȽȯȺȷɂȷȽȼʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ 

Response to U.S. CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˽ʕ ˿ʗ GȽȽȵȺȳ Iȼȱʔʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ 

SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ Ȁʗ IȼɂȂȺ DȽȱɃȻȳȼɂȯɀɇ 

AɁɁȂȼ ȳɂ ȯȺʔ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ ȯɂ ˽ʗ PɀȽȴȂȺ PȶȽɂȽȵɀȯȾȶȳɀɁ Ƚȴ AȻʔ ʠȃPPAȄʡʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ 

RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˿ ʠFȳȰʔ ˿ʕ ˽˻˼˾ʡ ʠȃPPA IȼȷɂȷȯȺ 

CȽȻȻȳȼɂɁȄʡʔ 

227 See, e.g.ʕ AALL ȳɂ ȯȺʔ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ ȯɂ ˽ʗ AȻʔ IȼɂȳȺȺʔ PɀȽȾʔ LȯɅ AɁɁȂȼʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷtted in 

RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˾ ʠFȳȰʔ ˿ʕ ˽˻˼˾ʡʗ AAP IȼȷɂȷȯȺ 

CȽȻȻȳȼɂɁ ȯɂ ˽ʗ DȷȵȷɂȯȺ MȳȲȷȯ AɁɁȂȼʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ 

Oct. 22, 2012 Notice of Inquiry at 4 (Feb. 4, 2013); Kernochan Center Additional Comments at 3; Picture 

AɀȱȶȷɄȳ CȽɃȼȱȷȺ Ƚȴ AȻʔʕ Iȼȱʔ ʠȃPACAȄʡʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ 

Oct. 22, 2012 Notice of Inquiry at 2-˾ ʠFȳȰʔ ˿ʕ ˽˻˼˾ʡ ʠȃPACA IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡʗ RȳȱȽɀȲȷȼȵ Industry 

AɁɁȽȱȷȯɂȷȽȼ Ƚȴ AȻȳɀȷȱȯ ʠȃRIAAȄʡʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ 

22, 2012 Notice of Inquiry at 3-˿ ʠȃRIAA IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡʗ RɃɂȵȳɀɁ UȼȷɄʔ LȷȰɀȯɀȷȳɁ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ ȯɂ ˽ʔ 

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stakeholder debate, and congressional oversight. It built upon efforts in 2006, and included a 

number of new proposals specifically aimed at visual artists.228 For many people, the Shawn 

Bentley Act represents a deliberate, technology-neutral, innovative, and balanced approach to the 

orphan works problem. 

The Copyright Office agrees that the Shawn Bentley Act continues to be the most viable 

legislative solution, but is introducing three key substantive modifications. These are: (1) a 

Notice of Use provision, chiefly in order to increase the likelihood that owners will connect with 

users; (2) allowing judicial consideration of the results of foreign diligent searches, in recognition 

of the international scope of the orphan works problem; and (3) an exception to the restriction on 

injunctions for use of orphan works in derivative works, addressing the integrity concerns of 

certain owners. Our proposed legislation is attached as Appendix A, and its key elements are 

detailed in the sections below. 

a. Applicability to All Categories of Works 

Lȷȹȳ ȾȯɁɂ ȷɂȳɀȯɂȷȽȼɁ Ƚȴ ȽɀȾȶȯȼ ɅȽɀȹɁ ȺȳȵȷɁȺȯɂȷȽȼʕ ɂȶȳ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ ɁɃȵȵȳɁɂȳȲ 

approach would apply to every category of copyrightable work. In its 2006 Report, the Office 

considered and rejected suggestions that unpublished works, foreign works, and musical works 

be excluded from an orphan works solution.229 Similarly, the 2006 and 2008 bills included no 

restrictions upon the categories of works to be covered.230 CȽȼɁȷɁɂȳȼɂ ɂȶɀȽɃȵȶȽɃɂ ɂȶȳ OȴȴȷȱȳȂɁ 

study of orphan works has been the belief that any work, regardless of category or age, can 

potentially be orphaned and, just as importantly, that all categories of orphan works have the 

potential to be reused in socially beneficial ways. There should be no distinction as to whether a 

work is currently being exploited, or whether it was created decades ago or more recently. 

The Copyright Office recognizes that there are special concerns with regard to pictorial, 

graphic, and sculptural works. Notably, advocates for illustrators and textile manufacturers have 

been persistent since 2006 in pointing out that, because their works are rarely made available to 

the public with copyright information attached – either for business or aesthetic reasons or 

because the information is nefariously stripped out – a search, no matter how diligent, is unlikely 

228 See PACA Initial Comments at 2 (deɁȱɀȷȰȷȼȵ PACAȂɁ ɀȽȺȳ ȷȼ ȶȳȺȾȷȼȵ ȱɀȯȴɂ ȺȯȼȵɃȯȵȳ ȷȼ ɂȶȳ SȶȯɅȼ BȳȼɂȺȳɇ 

Aȱɂ ɂȶȯɂ ȃɅȽɃȺȲ ȼȽɂ ɃȼȲɃȺɇ ȰɃɀȲȳȼ ɂȶȳ ȽɅȼȳɀɁ ȯȼȲ ɀȳȾɀȳɁȳȼɂȯɂȷɄȳɁ Ƚȴ ɅȽɀȹɁ Ƚȴ ɄȷɁɃȯȺ ȯɀɂ Ƚɀ ȶȯɀȻ ɂȶȳ 

Ȼȯɀȹȳɂ ȴȽɀ ɂȶȳ ɄȷɁɃȯȺ ȯɀɂɁȄʡʔ 

229 2006 REPORT, supra note 9, at 79-81. 

230 See Shawn Bentley Orphan Works Act of 2008, S. 2913, 110th Cong.; Orphan Works Act of 2008, H.R. 

5889, 110th Cong.; Orphan Works Act of 2006, H.R. 5439, 109th Cong. 

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to be successful. 231 Thus, they argue, orphan works legislation, if applied to commercial uses, will 

create a loophole for bad actors to exploit, without any benefit to visual arts creators and owners 

in terms of increased licensing.232 Furthermore, they maintain that in order to close this loophole, 

visual artists will be effectively forced to spend an enormous amount of time and money 

digitizing and registering their works with private registries, a burden that only the most wealthy 

will be able to bear.233 

The Office takes these concerns seriously, but does not believe that they outweigh the 

benefits of comprehensive orphan works legislation encompassing all categories of works. In 

fact, it is the very same characteristics of mass distribution and frequent lack of textual identifying 

information that some argue would put visual art works at special risk for infringement under an 

orphan works regime, that make it necessary to include such works. Visual art works present, in 

fact, almost the paradigmatic orphan works situation, and better that potential users have an 

incentive to diligently search for their owners than that they are infringed outright or collect dust. 

Furthermore, the Office believes that many features of the proposed legislation, such as the 

rigorous search standard and the Notice of Use provision, make it less likely that bad actors will 

find an orphan works limitation an attractive shield for their activities. 

Additionally, developments since 2008 have helped to reduce the obstacles facing visual 

artists in an orphan works context – most notably the development of credible visual art registries 

and a major report and legislative proposal from the Copyright Office regarding a small claims 

mechanism. As orphan works legislation goes forward, the prospect of its enactment may spur 

increased support for and investment in visual arts registries. Currently, several visual arts 

organizations support the non-profit PLUS Registry as an important way to enable diligent 

searches for owners of orphan works.234 PLUS ȴɃȼȱɂȷȽȼɁ ȯɁ ȯ ȃȶɃȰȄ ȱȽȼȼȳȱɂȷȼȵ ɀȳȵȷɁɂɀȷȳɁ ȷȼ 

231 See IȺȺɃɁɂɀȯɂȽɀɁȂ PȂɁȶȷȾ Ƚȴ AȻʔʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ 

˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˽ȁ ʠFȳȰʔ ˿ʕ ˽˻˼˾ʡ ʠȃIȺȺɃɁɂɀȯɂȽɀɁȂ PȂɁȶȷȾ Ƚȴ AȻʔ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡ ʠAȾȾȳȼȲȷɆʖ 

ɁɂȯɂȳȻȳȼɂ Ƚȴ Cɇȼɂȶȷȯ TɃɀȼȳɀ ȯɂ ɂȶȳ SȻȯȺȺ BɃɁȷȼȳɁɁ AȲȻȷȼȷɁɂɀȯɂȷȽȼ RȽɃȼȲɂȯȰȺȳʖ ȃHȽɅ WȷȺȺ ɂȶȳ OɀȾȶȯȼ 

WȽɀȹɁ BȷȺȺɁ EȱȽȼȽȻȷȱȯȺȺɇ IȻȾȯȱɂ SȻȯȺȺ EȼɂȷɂȷȳɁʚȄ (Aug. 8, 2008)); Promoting the Use of Orphan Works, supra 

note 184, at 89-90 (statement of Corinne P. Kevorkian, F. Schumacher & Co.). 

232 See, e.g.ʕ IȺȺɃɁɂɀȯɂȽɀɁȂ PȂɁȶȷȾ Ƚȴ AȻʔ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ ȯɂ ˽˻ ʠȃBɇ Ȳȳȴȷȼȷȼȵ ȻȷȺȺȷȽȼɁ Ƚȴ ȱȽȾɇɀȷȵȶɂȳȲ ɅȽɀȹɁ ȯɁ 

orphans on the premise that some might be, previous bills would allow Internet content providers to build 

financial empires by harvesting the work of others, providing their databases with content they could never 

create themselves nor acquire from authors without hȯɄȷȼȵ ɂȽ Ⱦȯɇ ȴȽɀ ȷɂʔȄʡʔ 

233 See id. at 3-4. 

234 See, e.g.ʕ AȻʔ PȶȽɂȽȵɀȯȾȶȷȱ AɀɂȷɁɂɁ ʠȃAPAȄʡʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ 

OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˿ ʠFȳȰʔ ˿ʕ ˽˻˼˾ʡʗ ASMP IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ ȯɂ Ȁ-6; Graphic Artists 

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eighty-eight countries, and provides both literal and image-based searches.235 Rightsholders may 

list their works at no cost, while the storage of image records and rights records is at a nominal 

cost.236 OɄȳɀɁȳȯɁʕ ɂȶȳ UʔKʔȂɁ CȽȾɇɀȷȵȶɂ HɃȰ ȷɁ ȯ ɅȳȰɁȷɂȳ ȲȳȲȷȱȯɂȳȲ ɂȽ Ȼȯȹȷȼȵ ɂȶȳ ȺȷȱȳȼɁȷȼȵ Ƚȴ 

protected works easier, for both owners and users,237 and it connects with several collective 

licensing organizations and registries.238 Other ongoing initiatives are likely to produce 

additional resources of this type in the coming years. For example, the Copyright Office has 

entered into an academic partnership with Stanford Law School in which students are exploring 

ways to centrally assemble information concerning the licensing of photographs and the data 

standards relied upon by copyright owners and licensees to engage in such transactions.239 Of 

course, the use of PLUS, or any other registry, should be treated as only one component of a 

qualifying search. 

In the unlikely but unfortunate event that a work of visual art is erroneously claimed by a 

ɃɁȳɀ ɂȽ Ȱȳ ȃȽɀȾȶȯȼȳȲʕȄ ȯȼȲ ȱȽȵȼȷɈȯȰȺȳ ȲȯȻȯȵȳɁ ɂȽ ɂȶȳ ȽɅȼȳɀ ɀȳɁɃȺɂʕ ȯ ɁȻȯȺȺ ȱȺȯȷȻɁ ɂɀȷȰɃȼȯȺ Ƚȴ ɂȶȳ 

sort recommended by the Office240 should provide a suitable forum for hearing the resulting 

complaint. Photographers were one of the primary constituencies advocating for a small 

GuȷȺȲ ʠȃGAGȄʡʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ 

IȼȿɃȷɀɇ ȯɂ ˾ ʠJȯȼʔ ˾˼ʕ ˽˻˼˾ʡ ʠȃGAG IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡʗ PACA IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ ȯɂ Ȃ-8; PPA Initial 

Comments at 8. 

235 PACA Initial Comments at 7-8. Registries such as PLUS should become even more helpful as imagerecognition technology improves. See John Markoff, Researchers Announce Advance in Image-Recognition 

Software, N.Y. TIMES, Nov. 18, 2014, http://www.nytimes.com/2014/11/18/science/researchers-announcebreakthrough-in-content-recognition-software.html. 

236 PACA Initial Comments at 7-8. 

237 See THE COPYRIGHT HUB, http://www.copyrighthub.co.uk. 

238 See, e.g., BRITISH ASSȂN OF PICTURE LIBRARIES & AGENCIES, http://www.bapla.org.uk); DESIGN & ARTISTS 

COPYRIGHT SOCIETY, http://www.dacs.org.uk. 

239 See Academic Partnerships, U.S. COPYRIGHT OFFICE, http://www.copyright.gov/about/specialprograms/partnerships.html. Additionally, the Copyright Office is currently seeking information regarding 

the digital marketplace for certain visual works, such as challenges faced by creators in the areas of 

monetization, licensing, registration, and enforcement. See Notice of Inquiry, Copyright Protection for 

Certain Visual Works, 80 Fed. Reg. 23,054 (Apr. 24, 2015). 

240 See COPYRIGHT SMALL CLAIMS, supra note 221. 

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copyright claims system,241 and the Office believes that such a tribunal would be a particularly apt 

venue for determining whether a qualifying search was performed by the user, and other 

questions of compliance with the remedy limitation requirements of an orphan works solution. 

It also has been argued that musical works should be exempt from the scope of any 

orphan works legislation, because the detailed record-keeping of the music publishing industry, 

including performing rights organizations, makes it unlikely that information on a musical work 

will be impossible to find – in short, that orphaned musical works are a vanishing if not extinct 

species.242 While this may be true for published works,243 there are certainly many unpublished 

musical works whose owners will indeed escape the most diligent of searches. Moreover, the 

comparative ease of finding the owner of a published musical work does not argue against 

including such works in an orphan works system; it only means that, in practice, the owners of 

these works will be found, and resort to a limitation on liability will be unlikely. The proposed 

legislation also provides that if a work (such as a musical work) is covered by a statutory license, 

that license will apply instead of the orphan works provision. 

b. Applicability to All Types of Uses and Users 

The Copyright Office recommends that future orphan works legislation apply to all types 

of uses and all types of users, noncommercial and commercial, with the single exception of 

fixations of works of visual art in or on commercially available useful articles. 

Several stakeholders have commented in the recent round of written and roundtable 

participation that they would be comfortable with orphan works legislation only if it applied 

solely to noncommercial uses (e.g., preservation and education) by noncommercial users (e.g., 

241 See, e.g.ʕ APAʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽Ȃʕ ˽˻˼˼ NȽɂȷȱȳ Ƚȴ 

Inquiry in re: Study on Remedies for Copyright Small Claims (Jan. 17, 2012); ASMP, Initial Comments 

Submitted in RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽Ȃʕ ˽˻˼˼ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȷȼ ɀȳʖ SɂɃȲɇ Ƚȼ RȳȻȳȲȷȳɁ 

for Copyright Small Claims (Jan. 16, 2012); PACA, Initial Comments Submitted in Response to U.S. 

CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽Ȃʕ ˽˻˼˼ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȷȼ ɀȳʖ SɂɃȲɇ on Remedies for Copyright Small Claims 

(Jan. 16, 2012). 

242 See, e.g.ʕ NȯɂȂȺ MɃɁȷȱ PɃȰȺȂɀɁȂ AɁɁȂȼʕ Iȼȱʔ ʠȃNMPAȄʡ ȯȼȲ Hȯɀɀɇ FȽɆ Aȵȳȼȱɇʕ Iȼȱʔ ʠȃHFAȄʡʕ IȼȷɂȷȯȺ 

CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˽ ʠFȳȰ. 4, 

˽˻˼˾ʡ ʠȃNMPA ʒ HFA IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡʔ 

243 There emerged at the public roundtable some dispute over the comprehensiveness of corporate 

information regarding musical works and sound recordings. Tr. at 170:1-171:15 (Mar. 10, 2014) (Nancy 

Prager, Prager Law, PLLC & Jay Rosenthal, NMPA). 

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libraries, museums, archives, and nonprofit educational institutions).244 We appreciate that such a 

restriction might provide a level of comfort for rightsholders,245 but maintain that it is essential to 

include commercial users and uses for two primary reasons. 

The first is that, simply put, nonprofit entities are not the only source of public benefit in 

the creative sector. To realize the full potential of an orphan works system, commercial users 

such as authors, musicians, documentarians, and others must be able to enjoy limited liability for 

their uses – post-diligent search – Ƚȴ ȽɀȾȶȯȼ ɅȽɀȹɁʔ AɁ Ƚȼȳ ɁɂȯȹȳȶȽȺȲȳɀ ȾɃɂ ȷɂʕ ȃȻȽɁɂ 

documentary and independent filmmakers are, of course, commercial users, but that does not 

diminish their important role in our democracy as journalists, storytellers, and historians 

ȲȽȱɃȻȳȼɂȷȼȵ ɂȶȳ AȻȳɀȷȱȯȼ ȳɆȾȳɀȷȳȼȱȳʔȄ246 The second reason is that in many cases a use that 

begins as noncommercial – say, a public television documentary – may become commercial – the 

selling of copies or streams of that documentary after it airs. In other words, while it might be 

legislatively feasible to limit orphan works legislation to noncommercial uses by noncommercial 

users, this distinction is quite likely to break down in practice.247 

The one exclusion for commercial uses – fixations in or on useful articles – is reasonable 

because such uses tend to be secondary to the kind of beneficial uses that are the intended result 

of orphan works legislation. The re-purposing of a pictorial, graphic, or sculptural work on an 

244 See, e.g.ʕ AȻʔ AɁɁȂȼ Ƚȴ IȼȲȳȾȳȼȲȳȼɂ MɃɁȷȱ ʠȃA˽IMȄʡʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ 

CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˾ ʠFȳȰʔ ˿ʕ ˽˻˼˽ ʢɁȷȱʣʡ ʠȃA˽IM IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡ 

(suggesting that anɇ ɁȽȺɃɂȷȽȼ Ȱȳ ȺȷȻȷɂȳȲ ɂȽ ȃȽȼȺɇ ȺȷȰɀȯɀȷȳɁʕ ȻɃɁȳɃȻɁ ȯȼȲ ɁȱȶȽȽȺɁ ɂȶȯɂ Ȼȳȳɂ ȱȳɀɂȯȷȼ Ɂɂɀȷȱɂ 

ȲȳȴȷȼȷɂȷȽȼɁȄʡʗ AɀɂȷɁɂɁ RȷȵȶɂɁ SȽȱȂɇ ʠȃARSȄʡʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ 

OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˽ ʠɃȼȲȯɂȳȲʡʗ GAG IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ ȯɂ Ȅ ʠGAG ȃȯȰɁȽȺɃɂȳȺɇ 

opposes any commercial use by commercial users. A definition of non-commercial use must be 

ȲȳɄȳȺȽȾȳȲʔȄʡʗ NȯɂȂl Press Photographers AssȂn, Initial Comments Submitted in Response to U.S. Copyright 

OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ 2012 Notice of Inquiry at 4-5 (Jan. 24, 2013). 

245 The EU Orphan Works Directive, of course, restricts its exceptions to specified nonprofit cultural 

institutions with public service missions. See EU Orphan Works Directive, supra note 74, art. 1(1). This 

aspect of the Directive has been criticized by several commentators. See Berkeley Digital Library Copyright 

PɀȽȸȳȱɂ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ ȯɂ ˽˽ ʠȱȷɂȷȼȵ ȱɀȷɂȷȱȷɁȻɁ Ƚȴ ɂȶȳ DȷɀȳȱɂȷɄȳȂɁ ȺȷȻȷɂȳȲ ɁȱȽȾȳʡʔ Iȼ ȴȯȱɂʕ ɁȳɄȳɀȯȺ EU 

countries have supplemented their compliance with the Directive with additional orphan works solutions, 

such as government licensing. See, e.g., 2013. évi CLIX. törvény a szellemi tulajdonra vonatkozó egyes 

törvények módosításáról (Act CLIX. of 2013 on the Amendment of Certain Statutes Concerning Intellectual 

Property), § 16 (Hung.) (translation unavailable); U.K. Orphan Works Licensing Regulations, S.I. 2014/2863. 

246 IȼɂȂȺ DȽȱɃȻȳȼɂȯɀɇ AɁɁȂȼ ȯȼȲ FȷȺȻ IȼȲȳȾȳȼȲȳȼɂ AȲȲȷɂȷȽȼȯȺ CȽȻȻȳȼɂɁ ȯɂ ˼˽ʔ 

247 See, e.g., Tr. at 156:2-4 (Mar. 10, 2014) (Nancy Prager, Pɀȯȵȳɀ LȯɅ PLLCʡ ʠȃSȽ ɂȶȯɂ ȲȷɁɂȷȼȱɂȷȽȼʕ ȰȳɂɅȳȳȼ 

ȱȽȻȻȳɀȱȷȯȺ ȯȼȲ ȼȽȼȱȽȻȻȳɀȱȷȯȺʕ ɂȽ Ȼȳ ȷɁ ȯ ȺȷɂɂȺȳ Ȱȷɂ Ƚȴ ȯ ɀȳȲ ȶȳɀɀȷȼȵ ȯȼȲ ȯȺɁȽ ȯ ȺȷɂɂȺȳ Ȱȷɂ ɃȼȲȳȴȷȼȯȰȺȳʔȄʡʔ 

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article of pure functionality such as a mug or t-Ɂȶȷɀɂ ȲȽȳɁ ȼȽɂ ɀȳȲȽɃȼȲ ɂȽ ɂȶȳ ȾɃȰȺȷȱȂɁ Ȱȳȼȳȴȷɂ ɁȽ 

much as it represents a mere decoration choice.248 Additionally, this exclusion helps address the 

risk pointed out by textile manufacturers of their designs being illegitimately reused,249 as it 

would preserve full remedies for infringements on such articles as upholstery, curtains, and floor 

coverings. 

c. Eligibility for Limitations on Remedies 

i. Conditions 

Tȶȳɀȳ ȯɀȳ ɁȷɆ ȱȽȼȲȷɂȷȽȼɁ ȷȼ ɂȶȳ OȴȴȷȱȳȂɁ ɀȳȱȽȻȻȳȼȲȳȲ ȺȳȵȷɁȺȯɂȷɄȳ ȺȯȼȵɃȯȵȳ ɂȶȯɂ ɃɁȳɀɁ ȻɃst 

satisfy in all instances to qualify for the limitation on monetary or injunctive relief. These reflect 

the fact that users in this context would be in discussions with rightsholders if they could locate 

them, and want to either locate them or be sure that they have taken all required steps. 

Users must: (1) if sued for infringement, prove to the court by a preponderance of the 

evidence that they performed a good faith, qualifying search to locate and identify the owner of 

the infringed copyright before the use of the work began; (2) file a Notice of Use with the 

Copyright Office; (3) provide attribution to the legal owner of the copyright, if reasonable under 

the circumstances; (4) include a to-be-ȲȳɂȳɀȻȷȼȳȲ ȃȽɀȾȶȯȼ ɅȽɀȹɁȄ ɁɇȻȰȽȺ Ʌȷɂȶ ȯȼɇ ȾɃȰȺȷȱ 

distribution, display, or performance of the work; (5) assert eligibility for such limitations in the 

initial pleading in any civil action involving the infringed work; and (6) state with particularity 

the basis for eligibility for the limitations during initial discovery disclosures. 

ii. Good Faith Diligent Search 

1) Qualifying Searches 

The current legislative recommendation closely follows the Shawn Bentley Act approach 

ȴȽɀ Ɂȳȯɀȱȶ ɀȳȿɃȷɀȳȻȳȼɂɁʔ A Ɂȳȯɀȱȶ ȿɃȯȺȷȴȷȳɁ Ʌȶȳɀȳ ɂȶȳ ɃɁȳɀ ɃȼȲȳɀɂȯȹȳɁ ȯ ɀȳȯɁȽȼȯȰȺɇ ȃȲȷȺȷȵȳȼɂ 

efȴȽɀɂȄ ɂȽ ȺȽȱȯɂȳ ɂȶȳ ȽɅȼȳɀ ȾɀȷȽɀ ɂȽʕ ȯȼȲ ȯɂ ȯ ɂȷȻȳ ɀȳȯɁȽȼȯȰȺɇ ȾɀȽɆȷȻȯɂȳ ɂȽʕ ȱȽȻȻȳȼȱȷȼȵ ɃɁȳʔ A 

diligent search requirement is necessary both to offset the limitations on infringement remedies 

248 See, e.g.ʕ ARSʕ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ FȳȰʔ ˼˻ʕ ˽˻˼˿ NȽɂȷȱȳ Ƚȴ 

IȼȿɃȷɀɇ ȯɂ ˽ ʠɃȼȲȯɂȳȲʡ ʠȳɆȾɀȳɁɁȷȼȵ ȱȽȼȱȳɀȼ ɀȳȵȯɀȲȷȼȵ ɂȶȳ ȃȻȽɁɂ ȳȵɀȳȵȷȽɃɁ ȳɆȾȺȽȷɂȯɂȷȽȼ Ƚȴ ȯȼ ȯɀɂȷɁɂȂɁ ɅȽɀȹɁʕ 

be it for application to coffee mugs, posters, rugs, corporate logos, advertisements, t-shirts and boxer 

ɁȶȽɀɂɁȄʡʔ 

249 Promoting the Use of Orphan Works, supra note 184, at 43 (statement of Corinne P. Kevorkian, F. 

Schumacher & Co.). 

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that would otherwise apply, and to facilitate wherever possible the would-be user locating and 

ɅȽɀȹȷȼȵ Ʌȷɂȶ ɂȶȳ ȽɅȼȳɀʔ Tȶȳ ɂȳɀȻ ȃȽɅȼȳɀȄ ȶȳɀȳ ɀȳȴȳɀɁ ɂȽ ȯȼ ȽɅȼȳɀ Ƚȴ ȯȼɇ ȳɆȱȺɃɁȷɄȳ ɀȷȵȶɂ 

relevant to the infringement, or an entity with the authority to grant or license such a right.250 

ȃAɃɂȶȽɀɁȄ Ƚȴ ɅȽɀȹɁ Ƚȴ ɄȷɁɃȯȺ ȯɀɂʕ ɅȶȽ Ȼay bring infringement actions under Section 106A based 

upon violations of their rights of attribution and integrity, are not affected by this draft 

legislation. In other words, a qualifying search does not confer a limitation on liability if that 

liability is under Section 106A. 

A Ɂȳȯɀȱȶ ȷɁ ȱȽȼɁȷȲȳɀȳȲ ɂȽ Ȱȳ ȃȲȷȺȷȵȳȼɂȄ ȷȴ ɃɁȳɀɁ Ɂȳȯɀȱȶ or utilize: (1) Copyright Office 

online records; (2) reasonably available sources of copyright authorship and ownership 

information, including licensor information where appropriate; (3) technology tools and, where 

reasonable, expert assistance (such as a professional researcher or attorney); and (4) appropriate 

databases, including online databases. Each search is mandatory only to the degree it is 

reasonable under the circumstances. For example, a search of Copyright Office records is only 

necessary if sufficient identifying information already exists on which to base the search. Users, 

however, cannot rely solely on a lack of identifying information; instead the user must undertake 

the most comprehensive search possible in light of limited information, because a lack of 

identifying information does not excuse a user from conducting any searches. 

Beyond the enumerated sources, the legislation requires that users take any other actions 

that are reasonably likely to be useful in identifying and locating the copyright owner. What is 

250 Two groups of commenters argued that artists and creators – such as screenwriters, directors, actors, and 

musicians – ɅȶȽ ȯɀȳ ȼȽɂ ɂȳȱȶȼȷȱȯȺȺɇ ȱȽȾɇɀȷȵȶɂ ȃȽɅȼȳɀɁȄ ȷȼ ɂȶe sense that they possess any of the exclusive 

rights enumerated in Section 106 of the Copyright Act, but who retain a beneficiary interest in a work they 

have created or participated in, via residual or royalty agreements, should have to be sought out as part of a 

qualifying search, and, if located, be able to grant or withhold permission for use of the work. See DGA & 

WGAW IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ ȯɂ ˽ʗ Sȱɀȳȳȼ AȱɂȽɀɁ GɃȷȺȲ ʒ AȻʔ FȳȲʔ Ƚȴ TȳȺȳɄȷɁȷȽȼ ʒ RȯȲȷȽ AɀɂȷɁɂɁ ʠȃSAGAFTRAȄʡʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ 

Inquiry at 3-˿ ʠFȳȰʔ ˿ʕ ˽˻˼˾ʡ ʠȃSAG-AFTRA IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡʔ Furthermore, these commenters argued, 

should a user exploit an orphan work commercially after failing to locate the owner, that user should be 

obligated to pay reasonable compensation and provide attribution to the relevant author, actor, or other 

creator. See, e.g., SAG-AFTRA Initial Comments at 3-4. The Office agrees that non-owner creators should 

be sought out in the course of a good faith qualifying search, but primarily because of the information they 

will likely have regarding the owner(s) of the work in question. The Office does not agree, however, that 

such parties should necessarily stand in the shoes of the owner of the work in terms of being able to grant 

permission for use; this re-calibration of the roles of licensor and licensee is not properly addressed by 

orphan works legislation. Similarly, because a user of an orphan work enjoys none of the exclusive rights 

of the owner, it would be unreasonable to require him to pay compensation based upon a contract with 

which he has no privity. Non-owner creators who are authors of works of visual art, however, have 

separate rights under Section 106A that are not affected by this draft legislation. 

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ȃɀȳȯɁȽȼȯȰȺɇ ȺȷȹȳȺɇȄ ȲȳȾȳȼȲɁ ɃȾȽȼ ɂȶȳ ȴȯȱɂɁ ȹȼȽɅȼ ȯɂ ɂȶȳ ȽɃɂɁȳɂ Ƚȴ ɂȶȳ Ɂȳȯɀȱȶʕ ȯɁ ɅȳȺȺ ȯɁ ɃȾȽȼ 

facts uncovered during the search – in other words, as the search progresses, users may need to 

refine their search efforts. A qualifying search may also require use of resources that impose a 

charge (e.g., online databases requiring a subscription or paid services, such as the Copyright 

OȴȴȷȱȳȂɁ Ɂȳȯɀȱȶ ɁȳɀɄȷȱȳʡʔ When a user fails to conduct a qualifying search, the user is not eligible 

for a limitation on remedies. This does not technically mean that the user cannot move forward if 

he or she is inclined to take a risk; indeed this is the situation we have today. Rather, it means 

that the user will have no clear shield against liability. 

2) Judicial Consideration of Qualified Foreign Searches 

Since Congress last considered orphan works legislation in 2008, foreign jurisdictions have 

made great strides in tackling the problem.251 The European Union, the United Kingdom, 

HɃȼȵȯɀɇʕ ȯȼȲ ȽɂȶȳɀɁ ɀȳȿɃȷɀȳʕ ȯɁ ȲȽȳɁ ɂȶȳ OȴȴȷȱȳȂɁ Ȳɀȯȴɂ ȺȳȵȷɁȺȯɂȷȽȼʕ ɂȶȯɂ ȯ ȲȽȱɃȻȳȼɂȳȲʕ ȲȷȺȷȵȳȼɂʕ 

good faith search be undertaken before a work can be considered an orphan work.252 What 

happens, then, if a foreign jurisdiction determines that a work is orphaned based on a search 

conducted in that foreign jurisdiction, and the user who performed the search wants to use the 

same work in the United States? What if a different user wanted to rely upon a foreign 

determination of a work as orphaned? Particularly in the case of the U.K., Hungary, and Canada, 

where a government entity must certify each orphan works search, it would seem both logical 

and efficient that such a search should carry some weight in the United States. 

The Office recommends, then, that when a foreign search for the owner of a work is 

diligent but unsuccessful, and certified as such by an appropriate government authority, a United 

States court, in determining whether a particular search qualifies under the statute, should be 

allowed to take the results of the foreign search into account,253 provided that the foreign 

251 See supra Part I.C, discussing various foreign orphan works regimes. 

252 See EU Orphan Works Directive, supra note 74, art. 4; U.K. INTELL. PROP. OFFICE, GOVERNMENT RESPONSE 

TO THE TECHNICAL CONSULTATION ON ORPHAN WORKS, supra note 115, at 4 (2014); 1999. évi LXXVI. törvény 

ȯ ɁɈȳɀɈʋȷ ȸȽȵɀʅȺ ʠAȱɂ LXXVI Ƚȴ ˼ȄȄȄ Ƚȼ CȽȾɇɀȷȵȶɂʡ § ˿˼/Aʠ˼ʡ ʠHɃȼȵʔʡ ʠȳȴȴȳȱɂȷɄȳ ȴɀȽȻ Oȱɂʔ ˽Ȅʕ ˽˻˼˿ʡʗ 138/2014. 

ʠIVʔ˾˻ʔʡ KȽɀȻʔ ɀʔ ȯɈ ɉɀɄȯ Ȼʤ ȴȳȺȶȯɁɈȼɉȺɉɁɉȼȯȹ ɀɜɁɈȺȳɂȳɁ ɁɈȯȰɉȺɇȯȷɀʅȺ ʠGȽɄȳɀȼȻȳȼɂȯȺ Dȳȱɀȳȳ NȽʔ ˼˾ȃ/˽˻˼˿ 

(IV. 30.) on Detailed Regulations on the Use of Orphan Works), § 3 (Hung.). 

253 Giving evidentiary weight to foreign investigations or searches is not an alien concept in the United 

States. Under the Federal Food, Drug, and Cosmetic Act, for example, the results of foreign safety 

inspections of foreign entities for purposes of export/import of food, drugs, and cosmetics ȃmay be used as . 

ʔ ʔ ȳɄȷȲȳȼȱȳ Ƚȴ ȱȽȻȾȺȷȯȼȱȳ ɅȷɂȶȄ ɁȳȱɂȷȽȼɁ Ƚȴ ɂȶȳ Aȱɂ ȱȽȼȱȳɀȼȷȼȵ ȯȲɃȺɂȳɀȯɂȳȲ ȲɀɃȵɁ ȯȼȲ ȲȳɄȷȱȳɁʕ ɂȶȳ 

standards for admission of imported drugs, and ȃȴȽɀ ȯȼɇ Ƚɂȶȳɀ ȾɃɀȾȽɁȳɁ ȯɁ ȲȳɂȳɀȻȷȼȳȲ ȯȾȾɀȽȾɀȷȯɂȳ Ȱɇ ɂȶȳ 

SȳȱɀȳɂȯɀɇʔȄ 21 U.S.C. § 384e. See also Betterbox Commcȃns Ltd. v. BB Techs./ Inc., 300 F.3d 325, 327 (3d Cir. 

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jurisdiction also recognizes qualifying U.S. searches. This provision would apply whether the 

U.S. user is the same as the foreign user, or different. It would not replace the need for a 

qualifying U.S. search, but complement it. In addition, giving U.S. courts the option of 

considering foreign searches as probative evidence that a reasonably diligent search was carried 

out would increase the likelihood that foreign jurisdictions will afford similar evidentiary weight 

to searches conducted in the United States. 

3) Recommended Practices 

Any qualifying search will be based on applicable statement(s) of Recommended Practices 

made available by the Copyright Office. The draft legislation stipulates that the Register of 

Copyrights maintain and make available statements of Recommended Practices for each category 

of work under Section 102(a).254 In formulating these Recommended Practices, the Register must 

consider materials, resources, databases, technology tools, and practices that are reasonable and 

relevant to the qualifying search. This kind of process would be implemented in a publicly 

transparent manner. 

Importantly, the Register may consider any comments submitted to the Copyright Office 

by any interested stakeholders. Recommended Practices documents created using the input of 

both rightsholders and users will likely achieve a balanced approach serving the interests of both 

groups.255 Furthermore, widespread and diverse stakeholder input will serve to legitimize these 

2002) (Alito, J.) (upholding a district court decision to admit evidence of trademark registrations in foreign 

countries only insofar as the evidence was relevant to the question of whether one of the parties had acted 

in good faith, and not the validity of any U.S. trademark). The dissent, concurring on the relevance issue, 

noted that ȃʢȷʣȼ ȽɀȲȷȼȯɀɇ ɂɀȯȲȳȻȯɀȹ ȺȷɂȷȵȯɂȷȽȼʕ ȶȽɅȳɄȳɀʕ ȳɄȷȲȳȼȱȳ Ƚȴ ȴȽɀȳȷȵȼ ɀȳȵȷɁɂɀȯɂȷȽȼɁ ȷɁ ȷɀɀȳȺȳɄȯȼɂʔȄ Id. 

at 336 n.1 (Rosenn, J., dissenting) (citing Fuji Photo Film Co. v. Shinohara Shoji Kabushiki Kaisha, 754 F.2d 591, 

599-600 (5th Cir. 1985); Double J of Broward, Inc. v. Skalony Sportswear GmbH, 21 U.S.P.Q.2d 1609, 1612 

(T.T.A.B. 1991)). See also Timely Prods. Corp. v. Arronʕ Ȁ˽˾ Fʔ˽Ȳ ˽ȃȃʕ ˽ȄȀ ʠ˽Ȳ Cȷɀʔ ˼ȄȂȀʡ ʠȃTȶȳ ȾɀȳɁɃȻȾɂȷȽȼ Ƚȴ 

validity which the issuance of the U.S. patent confers . . . is a real one . . . which does not require nor admit of 

ȯɃȵȻȳȼɂȯɂȷȽȼ Ȱɇ ȾɀȽȽȴ Ƚȴ ɂȶȳ ȷɁɁɃȯȼȱȳ Ƚȴ ȱȽɀɀȳɁȾȽȼȲȷȼȵ ȴȽɀȳȷȵȼ ȾȯɂȳȼɂɁʔȄʡ ʠȳȻȾȶȯɁȷɁ ȯȲȲȳȲʡʗ Heineken Tech. 

Servs. v. Darby, 103 F. Supp. 2d 476, 480 (D. Mass. 2000) (citing Timely Products Corp. v. Arron for the 

proposiɂȷȽȼ ɂȶȯɂ ȃʢɂʣȶȳ FȳȲȳɀȯȺ CȷɀȱɃȷɂ ȶȯɁ ȼȽɂȳȲ ʔ ʔ ʔ ȯȼɂȷȾȯɂȶɇ ɂȽɅȯɀȲɁ ȴȽɀȳȷȵȼ Ⱦȯɂȳȼɂ ȲȳɂȳɀȻȷȼȯɂȷȽȼɁ Ƚȼ 

ȼɃȻȳɀȽɃɁ ȽȱȱȯɁȷȽȼɁȄʡʔ 

254 These categories are (1) literary works; (2) musical works, including any accompanying words; (3) 

dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) 

pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound 

recordings; and (8) architectural works. 17 U.S.C. § 102(a). 

255 The United Kingdom recently puȰȺȷɁȶȳȲ ȽɀȾȶȯȼ ɅȽɀȹɁ ȃȲȷȺȷȵȳȼɂ Ɂȳȯɀȱȶ ȵɃȷȲȯȼȱȳȄ ȲȽȱɃȻȳȼɂɁ ɂȯɀȵȳɂȳȲ 

at film and sound, literary works, and visual art, which may prove useful resources for the Copyright 

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Recommended Practices documents and the orphan works provision generally in the eyes of 

users, rightsholders, and the general public. 

4) Qualifying Third-Party Databases 

Iȼ ȯ ȲȳȾȯɀɂɃɀȳ ȴɀȽȻ ɂȶȳ SȶȯɅȼ BȳȼɂȺȳɇ Aȱɂʕ ɂȶȳ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ ȾɀȽȾȽɁȳȲ ȺȳȵȷɁȺȯɂȷɄȳ 

language does not include a requirement for the Office to certify third-party databases containing 

visual art works. The Office believes that the development of such databases has progressed to 

the point that the involvement of the Office is no longer necessary as a spur to innovation. The 

PLUS Registry, discussed above, is the largest and most well-known of the databases being 

developed. We agree with the Copyright AȺȺȷȯȼȱȳ Ʌȶȳȼ ȷɂ ɁȯɇɁ ɂȶȯɂ PLUS ȲȳȻȽȼɁɂɀȯɂȳɁ ȃɂȶȯɂ ȷɂ ȷɁ 

feasible to define standards for identifying rights holders and communicating rights information; 

and model best practices for operating an industry neutral, global, nonprofit rights registry for 

imaȵȳɁʔȄ256 Moreover, the Copyright Office will be making improvements to its own database 

and the registration and recordation options for visual artists, all of which point to a data-driven 

future in which more artists will be findable. 

iii. Notice of Use 

The Notice of Use mechanism was not a feature of the Shawn Bentley Act passed by the 

Senate in 2008; it appeared only in the 2008 House bill. The Office believes that the principal 

advantage of a Notice of Use requirement is that copyright owners can use it to become aware 

that their work is considered orphaned and more easily respond to users. As noted above, the 

goal of any orphan works provision should be to unite owners and users. While filing a Notice of 

Use for each use of an orphan work may place a significant burden on users in some instances, 

this is true principally with respect to users wishing to use a large number of orphan works 

related to a single project (e.g., thȳ ȲȷȵȷɂȷɈȯɂȷȽȼ Ƚȴ ȯ ȺȷȰɀȯɀɇȂɁ ȳȼɂȷɀȳ ɁȾȳȱȷȯȺ ȱȽȺȺȳȱɂȷȽȼʡʔ Iȼ Ȼȯȼɇ 

cases, the mass digitization framework described in Part III.C would obviate the need for 

individual Notices in such circumstances. Hence, we see the Notice of Use as a mechanism for 

isolated uses. 

The recommended legislation provides that the Register of Copyrights will create and 

maintain an archive or registry to maintain Notice of Use filings. Notice of Use filings will 

include: (1) the type of work used (under 17 U.S.C. § 102(a)); (2) a description of the work; (3) a 

Office. See Orphan Works Search Guidance for Applicants, U.K. INTELLECTUAL PROPERTY OFFICE, 

https://www.gov.uk/government/publications/orphan-works-diligent-search-guidance-for-applicants. 

256 Copyright Alliance Initial Comments at 4. 

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summary of the qualifying search conducted; (4) any other identifying indicia available to the 

user; (5) the source of the work (e.g., library or website where work was located, publication 

where work originally appeared); (6) a certification that the user performed a qualifying search; 

and (7) the name of the user and a description of how the work will be used. 

The provision goes on to indicate that these Notice of Use filings will be retained by the 

Copyright Office and will be provided to individuals and the public only under regulations 

promulgated by the Office. Clearly, an archive of Notice of Use filings will be most useful when 

copyright owners have the ability to search it periodically in order to see if a work of theirs has 

been identified as an orphan.257 Some parties have raised concerns, however, that requiring 

public disclosure of orphan work uses would involve revealing competitive or confidential 

information in some cases, to the detriment of the user.258 This drawback could be dealt with if 

the regulations require only a general description of the use of the work, as detailed usage 

information is not necessary in order for an owner to recognize his or her work.259 While the 

Office cannot and does not want to predetermine the outcome of the regulatory process for 

setting conditions for making Notice of Use filings available, at this time it appears to us that the 

more publicly searchable a Notice of Use database is, the greater the likelihood of bringing users 

and owners together. 

In the 2006 Report, the Office recommended against the adoption of a Notice of Use 

provision at that time. The Office was concerned that the difficulty of providing a textual 

description for certain types of works (e.g., untitled photographs and other visual works) would 

ȺȷȻȷɂ ɂȶȳ ɀȳȵȷɁɂɀɇȂɁ ɃɁȳȴɃȺȼȳɁɁ ɂȽ ɀȷȵȶɂɁȶȽȺȲȳɀɁ Ɂȳȳȹȷȼȵ ɂȽ ȲȳɂȳɀȻȷȼȳ ȷȴ ɂȶȳȷɀ ɅȽɀȹɁ ȶȯȲ Ȱȳȳȼ ɃɁȳȲʕ 

and to users inquiring whether a work had been the subject of a previous search.260 We recognize 

that a text-based system presents inherent limitations as a means of identification, but we believe 

that the combination of items required under the current legislation – description of the work, 

257 See RIAA IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ ȯɂ ˽ ʠA NȽɂȷȱȳ Ƚȴ UɁȳ ȲȯɂȯȰȯɁȳ ȃwill allow copyright owners to exercise 

diligence to ensure that their works are not erroneously treated as orphaned – much as the trademark ITU 

[Intent to Use] program allows trademark owners to object to registrations before marks are used by third 

ȾȯɀɂȷȳɁʔȄʡʔ 

258 See id. at 2-3; Tr. at 218:14-219:8 (Maɀʔ ˼˻ʕ ˽˻˼˿ʡ ʠPȯɂɀȷȱȹ MȱCȽɀȻȷȱȹʕ IȼɂȂȺ DȽȱɃȻȳȼɂȯɀɇ AɁɁȂȼ ȯȼȲ FȷȺȻ 

Independent). 

259 See RIAA Initial Comments at 2-3. 

260 See 2006 REPORT, supra note 9, at 113. The Office also expressed concern that a Notice of Use requirement 

could be burdensome to users wishing to make use of large collections of orphan works. As noted, we 

believe that the mass digitization framework proposed below could eliminate this burden in many cases. 

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summary of the search conducted, where it was located, etc. – will generate useful identifying 

information in most cases. Indeed, the value of this type of registry is reflected in the EU 

DȷɀȳȱɂȷɄȳʕ Ʌȶȷȱȶ ɀȳȿɃȷɀȳɁ ɂȶȯɂ ȷȼȴȽɀȻȯɂȷȽȼ ȯȰȽɃɂ ɃɁȳɀ ȽɀȵȯȼȷɈȯɂȷȽȼɁȂ ȲȷȺȷȵȳȼɂ ɁȳȯɀȱȶȳɁ ȯȼȲ ɂȶȳȷɀ 

use of orphan works be recorded in a publicly accessible online database managed by the Office 

for Harmonization in the Internal Market.261 

Others have argued that a Notice of Use registry could discourage diligent searches in that 

a user who sees a work listed there may be misled into believing that a subsequent search for the 

rightsholder is unnecessary or unlikely to be successful.262 The legislation makes clear, however, 

that every prospective user must satisfy the diligent search requirement independently, and that 

such obligation ȳȼɂȯȷȺɁ ȻȽɀȳ ɂȶȯȼ ɁȷȻȾȺɇ Ɂȳȯɀȱȶȷȼȵ ɂȶȳ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ ȽȼȺȷȼȳ ɀȳȱȽɀȲɁʔ AȼȲ 

while some users might forego such efforts after discovering that the work was the subject of a 

prior unsuccessful search, the Office believes that most will utilize the information in the registry 

to help ensure that their own searches include all appropriate sources.263 

iv. Notice of Claim of Infringement 

The limitations on remedies do not apply where, after receiving a Notice of Claim of 

Infringement from the owner of the work, the user fails to negotiate reasonable compensation 

with the rightsholder, or fails to render payment once an agreement is reached in a reasonably 

timely manner. The recommended legislation contains a definition of a Notice of Claim of 

Infringement, specifying the following information that must be included at a minimum: the 

name of the owner, the title or a description of the work, contact information for the owner or the 

ȽɅȼȳɀȂɁ ɀȳȾɀȳɁȳȼɂȯɂȷɄȳʕ ȯȼȲ ȷȼȴȽɀȻȯɂȷȽȼ ɁɃȴȴȷȱȷȳȼɂ ȴȽɀ ɂȶȳ ɃɁȳɀ ɂȽ ȴȷȼȲ ɂȶȳ ȽɀȾȶȯȼ ɅȽɀk within the 

ɃɁȳɀȂɁ ȻȯɂȳɀȷȯȺɁʔ Tȶȳ ȃȽɅȼȳɀ Ƚȴ ɂȶȳ ȷȼȴɀȷȼȵȳȲ ȱȽȾɇɀȷȵȶɂȄ ɀȳȴȳɀɁ ɂȽ ɂȶȳ ȷȼȲȷɄȷȲɃȯȺʠɁʡʕ 

organization(s), or other authorized agent(s) owning any particular exclusive right under Section 

106 applicable to an infringement. 

261 EU Orphan Works Directive, supra note 74, art. 3(5), (6). 

262 See IȼɂȂȺ DȽȱɃȻȳȼɂȯɀɇ AɁɁȂȼ ȯȼȲ FȷȺȻ IȼȲȳȾȳȼȲȳȼɂ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ ȯɂ ˼˻ʗ Tɀʔ ȯɂ ˽˼ȄʖȄ-14 (Mar. 10, 2014) 

ʠPȯɂɀȷȱȹ MȱCȽɀȻȷȱȹʕ IȼɂȂȺ DȽȱɃȻȳȼɂȯɀɇ AɁɁȂȼ ȯȼȲ FȷȺȻ IȼȲȳȾȳȼȲȳȼɂʡ ʠȃOɂȶȳɀ ɃɁȳɀɁ ɅȷȺȺ ȴȷȼȲ ȷɂ ȻȷɁȺȳȯȲȷȼȵ 

if they see that there and fail to do their own diligent search, which is a further concern because they may 

Ȱȳ ɂȶȳ ȰȳɁɂ ɁȷɂɃȯɂȳȲ Ⱦȯɀɂɇ ɂȽ ȯȱɂɃȯȺȺɇ ȴȷȼȲ ɂȶȳ ɀȷȵȶɂɁ ȶȽȺȲȳɀʔȄʡʔ 

263 See, e.g.ʕ NMPA ʒ HFA IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ ȯɂ Ȅ ʠȃTȶȳ Ȼȯȷȼɂȳȼȯȼȱȳ Ƚȴ ɀȳȱȽɀȲɁ ȯȼȲ ɀȳɁɃȺɂɁ Ƚȴ ȲȷȺȷȵȳȼɂ 

searches as well as information regarding any use made of orphan works filed in this Registry will help 

ȳȼɁɃɀȳ ɂȶȯɂ ɁɃȰɁȳȿɃȳȼɂ ɃɁȳɀɁ ȶȯɄȳ ɂȯȹȳȼ ɂȶȳ ɀȳȿɃȷɀȳȲ ɁɂȳȾɁ ȰȳȴȽɀȳ ɃɁȷȼȵ ȯ ȾȯɀɂȷȱɃȺȯɀ ɅȽɀȹʔȄʡʔ 

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d. Limitation on Remedies 

i. Monetary Relief: “Reasonable Compensation” 

Where a user satisfies the eligibility requirements of the orphan works legislation, 

ȻȽȼȳɂȯɀɇ ɀȳȺȷȳȴ ȷɁ ȺȷȻȷɂȳȲ ɂȽ ȃɀȳȯɁȽȼȯȰȺȳ ȱȽȻȾȳȼɁȯɂȷȽȼʔȄ Nȳȷɂȶȳɀ ȯȱɂɃȯȺ ȯȼȲ ɁɂȯɂɃɂȽɀɇ ȲȯȻȯȵȳɁʕ 

nor costs or attorneysȂ ȴȳȳɁʕ ɅȽɃȺȲ Ȱȳ ȯɄȯȷȺȯȰȺȳʔ Iȼ ȻȽɁɂ ȱȯɁȳɁʕ ȃɀȳȯɁȽȼȯȰȺȳ ȱȽȻȾȳȼɁȯɂȷȽȼȄ ɅȷȺȺ Ȱȳ 

close to or identical to a reasonable license fee. Statutory damages for infringement of a work 

whose copyright owner cannot be located, and thus will not have been licensed for a long time, 

would be unlikely to have been assessed at the high end of recovery in any event.264 Some 

commenters have stressed the importance of the recovery of costs and attorneysȂ ȴȳȳɁ ȯɁ ȯȼ 

incentive for re-appearing owners to bring suit in the first place, and criticized the absence of this 

remedy.265 However, incentives to litigate are obviated by the requirement that, once the owner 

files a Notice of Claim of Infringement, the user must negotiate for reasonable compensation. 

Because the costs of litigation can be avoided, there is no need to include the remedies of costs 

and attorneysȂ ȴȳȳɁ ȯɁ Ⱦȯɀɂ Ƚȴ ɂȶȳ ȽɀȾȶȯȼ ɅȽɀȹɁ ȺȳȵȷɁȺȯɂȷȽȼʔ 

The concept of reasonable compensation ȷɁ ȲȷɁȱɃɁɁȳȲ ȷȼ JɃȲȵȳ Pȷȳɀɀȳ LȳɄȯȺȂɁ ȽȾȷȼȷȽȼ ȷȼ 

Davis v. The Gap, Inc.,

266 which explains Ʌȶɇ ɂȶȳ ȃɀȳȯɁȽȼȯȰȺȳ ȺȷȱȳȼɁȳ ȴȳȳȄ ȱȽȼɁɂɀɃȱɂ ȷɁ ȯȾȾɀȽȾɀȷȯɂȳ 

in situations where users have sought to find the owner through a good faith diligent search: 

The Gap was not seeking, like [other] defendant[s], to surreptitiously steal material 

owned by a competitor. . . . [T]he Gap and Davis could have happily discussed the 

ȾȯɇȻȳȼɂ Ƚȴ ȯ ȴȳȳʕ ȯȼȲ ʔ ʔ ʔ DȯɄȷɁȂɁ ȱȽȼɁȳȼɂʕ ȷȴ ɁȽɃȵȶɂʕ ȱȽɃȺȲ ȶȯɄȳ Ȱȳȳȼ ȶȯȲ ȴȽɀ Ʉȳɀɇ 

little money, since significant advantages might flow to him from having his 

ʢɅȽɀȹʣ ȲȷɁȾȺȯɇȳȲ ȷȼ ɂȶȳ GȯȾȂɁ ȯȲʔ AȺɂȳɀȼȯɂȷɄȳȺɇʕ ȷȴ DȯɄȷɁȂɁ ȲȳȻȯȼȲɁ ȶȯȲ Ȱȳȳȼ 

ȳɆȱȳɁɁȷɄȳʕ ɂȶȳ GȯȾ ɅȽɃȺȲ ȷȼ ȯȺȺ ȺȷȹȳȺȷȶȽȽȲ ȶȯɄȳ ɁȷȻȾȺɇ ȳȺȷȻȷȼȯɂȳȲ DȯɄȷɁȂɁ ʢɅȽɀȹʣ 

264 The range for statutory damages is generally between $750 and $30,000 per work infringed. 17 U.S.C. § 

504(c). 

265 See BɀɃȱȳ Aʔ LȳȶȻȯȼʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ 

NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˼ ʠɃȼȲȯɂȳȲʡ ʠȃIɂ ȷɁ ȶȯɀȲ ɂȽ ȷȻȯȵȷȼȳ ȱȷɀȱɃȻɁɂȯȼȱȳɁ ɂȶȯɂ ɅȽɃȺȲ ȸɃɁɂȷȴɇ ȯ ɀȷȵȶɂɁ ȶȽȺȲȳɀ 

bringing action where the monetary relief would almost never amount to more than a fraction of litigation 

ȱȽɁɂɁʔȄʡʗ NMPA ʒ HFA IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ ȯɂ ˼˻-˼˼ ʠȃʢWȳʣ ȯɀȳ ȱȽȼȱȳɀȼȳȲ ɂȶȯɂ ȱȽȾɇɀȷȵȶɂ ȽɅȼȳɀɁ ɂȶȯɂ ȯɀȳ 

found after an orphan work has already been used will be discouraged from pursuing legal action to claim 

their rights if they must pay legal fees and other court costs. Without a legal fee remedy, copyright owners 

ɅȷȺȺ ȴȷȼȲ ȷɂ ȲȷȴȴȷȱɃȺɂ ɂȽ ɀȳɂȯȷȼ ȺȳȵȯȺ ȱȽɃȼɁȳȺ ɂȽ ȾɀȽɁȳȱɃɂȳ ɂȶȳȷɀ ȱȺȯȷȻɁʔȄʡʔ 

266 246 F.3d 152 (2d Cir. 2001). 

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from the photograph. Where [a prior court case] was motivated by its perception 

of the unrealistic nature of a suggestion that the infringer might have bargained 

with the owner, . . . such a scenario was in no way unlikely in the present case.267 

The Davis case shows that the burden of demonstrating fair market value falls to the 

copyright owner. The proposed orphan works provisȷȽȼ ɁȾȳȱȷȴȷȳɁ ɂȶȯɂ ȃɀȳȯɁȽȼȯȰȺȳ 

ȱȽȻȾȳȼɁȯɂȷȽȼȄ ɀȳȴȳɀɁ ɂȽ ɂȶȳ ɄȯȺɃȳ ɂȶȯɂ ɅȽɃȺȲ ȶȯɄȳ Ȱȳȳȼ ȯɀɀȷɄȳȲ ȯɂ immediately before the 

infringement began. This wording precludes copyright owners from asserting the amount for 

which he or she would have licensed the work ex post – the owner must prove that similarly 

situated owners have licensed similar uses for such amount.268 The Office believes that 

ȃɀȳȯɁȽȼȯȰȺȳ ȱȽȻȾȳȼɁȯɂȷȽȼȄ ɁȶȽɃȺȲ Ȱȳ ɃȼȲȳɀɁɂȽȽȲ ɂȽ ȷȼȱȺɃȲȳ ȯ Ⱦȳɀȱȳȼɂȯȵȳ-based royalty as well 

as a single, fixed sum, so that an orphan work user does not reap an unfair windfall in the event 

that his reuse of the work proves to be commercially successful.269 UȺɂȷȻȯɂȳȺɇ ɂȶȳ ȃɀȳȯɁȽȼȯȰȺȳ 

ȱȽȻȾȳȼɁȯɂȷȽȼȄ ɁɂɀɃȱɂɃɀȳ ȃȯȺȺȽɅɁ a copyright owner to present evidence related to the market 

value of his work and, at the same time, allows the copyright user to more precisely gauge his 

ȳɆȾȽɁɃɀȳ ɂȽ ȺȷȯȰȷȺȷɂɇʔȄ270 

ii. “Safe Harbor” for Certain Nonprofit Institutions and Uses 

The proposed legislation would further limit remedies where certain eligible users make 

specific noncommercial uses of orphan works, by providing an additional safe harbor against 

liability for those users. Eligible entities (nonprofit educational institutions, museums, libraries, 

archives, and public broadcasters) must prove that the use was primarily for educational, 

267 Id. at 164. 

268 Id. at 166. In the Davis ȱȯɁȳʕ ɂȶȳ ȱȽɃɀɂ ɀȳȸȳȱɂȳȲ ɂȶȳ ȾȺȯȷȼɂȷȴȴȂɁ ȱȺȯȷȻ ɂȶȯɂ ȶȳ ɅȽɃȺȲ ȶȯɄȳ ȺȷȱȳȼɁȳȲ ɂȶȳ 

ȲȳȴȳȼȲȯȼɂȂɁ ɃɁȳ ȴȽɀ ʃ˽ʔȀ ȻȷȺȺȷȽȼ ȯɁ ȃɅȷȺȲȺɇ ȷȼȴȺȯɂȳȲʔȄ Tȶȳ ȱȽɃɀɂ ȺȽȽȹȳȲ ɂȽ ȯȱɂɃȯȺ ɁȷȻȷȺȯɀ ɂɀȯȼɁȯȱɂȷȽȼɁ DȯɄȷɁ 

had concluded, including a license for a photograph in a magazine for $50. The court concluded that 

reasonable compensation would be in the range of $50. Id. at 161. 

269 See Jane C. Ginsburg, Recent Developments in US Copyright Law: Part I – ȄOrphanȅ Works 7 (Columbia Law 

Sch. Pub. Law & Legal Theory Working Paper Grp., Paper No. 08-183, 2008), available at 

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1263361 ʠȃIȴ ʦɂȶȳ ȯȻȽɃȼɂȂ ȱȯȼ Ȱȳ ɃȼȲȳɀɁɂȽȽȲ ɂȽ Ȼȳȯȼ 

ʦɂȶȳ ȰȯɁȷɁ Ƚȼ Ʌȶȷȱȶ ȯ ɁɃȻ ɅȷȺȺ Ȱȳ ȱȯȺȱɃȺȯɂȳȲʕȂ ɂȶȳȼ ɂȶȳ ɂȳɀȻ ȱȯȼ ȳȼȱȽȻȾȯɁɁ ȯ Ⱦȳɀȱȳȼɂȯȵȳ ɀȽɇȯȺɂɇ, and 

thereby avoid some inequities and possibly unintended consequences. For example, if the use proved 

ȳȼȽɀȻȽɃɁȺɇ ȺɃȱɀȯɂȷɄȳʕ ȰɃɂ ȷɂɁ ɁɃȱȱȳɁɁ ȱȽɃȺȲ ȼȽɂ ȶȯɄȳ Ȱȳȳȼ ȯȼɂȷȱȷȾȯɂȳȲʕ ɂȶȳ ʦȺȳȵȯȺ Ƚɀ ȰȳȼȳȴȷȱȷȯȺ ȽɅȼȳɀȂ ɅȷȺȺ 

not share in the proceeds of the exploitatȷȽȼ ȷȴ ʦȯȻȽɃȼɂȂ ȻȳȯȼɁ Ⱦɀȳ-determined fixed sum, but will share in 

ɂȶȳ ȾɀȽȱȳȳȲɁ ȷȴ ʦȯȻȽɃȼɂȂ ȷȼȱȺɃȲȳɁ ȯ ɁɂȯɂȳȲ Ⱦȳɀȱȳȼɂȯȵȳ ɀȽɇȯȺɂɇʔȄʡ ʠȱȷɂȯɂȷȽȼɁ ȽȻȷɂɂȳȲʡʔ 

270 Promoting the Use of Orphan Works, supra note 184, at 22 (statement of Marybeth Peters, Register of 

Copyrights). 

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religious, or charitable purposes. If, upon receiving a Notice of Claim of Infringement, and after a 

good faith investigation of that Notice, such users promptly cease using the infringed work, a 

court is barred from ordering them to pay even reasonable compensation. Hence, unlike other 

users, eligible entities can avoid paying damages for past use of an orphan work. Eligible entities 

also have the option of negotiating reasonable compensation with the owner instead of ceasing 

their use of the work. 

Wȶȳȼ ɂȶȳ Ɂȯȴȳ ȶȯɀȰȽɀ ɅȯɁ ȷȼȷɂȷȯȺȺɇ ȾɀȽȾȽɁȳȲ ȷȼ ɂȶȳ OȴȴȷȱȳȂɁ ˽˻˻ȁ RȳȾȽɀɂʕ ɂȶȳɀȳ ɅȯɁ ȼȽ 

requirement that an eligible infringer be a nonprofit or cultural institution, only that the use be 

without any purpose of direct or indirect commercial advantage. This was also the case in the 

2006 orphan works bill; the requirement that the infringer be a nonprofit educational institution, 

museum, library, archives, or public broadcaster was added in the 2008 orphan works bills, and 

we retain it in the current draft legislation. Throughout the orphan works consultative process, 

the concept of a safe harbor for limited purposes has engendered significant debate. 271 In the 

most recent commenting process, several stakeholders argued that eliminating the possibility of 

re-emerging owners obtaining monetary relief from unlicensed uses by non-profit users was 

ȃɅȷɂȶȽɃɂ ȻȳɀȷɂȄ272 ȯȼȲ ȃȶȯɀȻȴɃȺʔȄ273 Medical illustrators, for example, rely to a large degree on 

non-profit entities such as universities and foundations for licensing income, and it was argued 

that they would have their economic incentives undermined should their licensees be able to 

infringe orphan works without the deterrent of monetary damages.274 

The Office is convinced that the safe harbor provision is both necessary to prompt 

nonprofit educational and memory institutions to take advantage of the orphan works provision, 

and will not harm the creative incentives for professional artists. Because, as some commenters 

ȶȯɄȳ ȼȽɂȳȲʕ ȃȼȽɂ ȳvery act of a non-profit organization is non-commercial in its nature and 

271 See, e.g., Maria A. Pallante, Orphan Works & Mass Digitization: Obstacles & Opportunities, 27 BERKELEY TECH 

L. J. ˼˽Ȁ˼ʕ ˼˽ȀȂ ʠ˽˻˼˽ʡ ʠȃʢTʣȶȽɁȳ ɅȶȽ Ʌȳɀȳ ɂȶȳɀȳ ȹȼȽɅ ɂȶȯɂ ɂȶȷɁ ɁȾȳȱȷȯȺ ɂɀȳȯɂȻȳȼɂ ʢɁȯȴȳ ȶȯɀȰȽɀʣ ɅȯɁ ȯ ɀȳȯȺ 

ɁɂɀɃȵȵȺȳ ʔ ʔ ʔ ʔȄʡʗ Promoting the Use of Orphan Works, supra note 184, at 75 (2008) (statement of Victor Perlman, 

General Counsel and Managing Director, ASMP) (acknowledging broad areas of compromise reached 

during 2006 and 2008 negotiations of orphan works legislation, but noting thȯɂ ȃɂȶȳ ȾȯɀɂȷȳɁ ɃȺɂȷȻȯɂȳȺɇ ȱȯȻȳ 

to an impasse over certain aspects of the bill, primarily the extent of the so-ȱȯȺȺȳȲ ʦɁȯȴȳ ȶȯɀȰȽɀȂȄ ȾɀȽɄȷɁȷȽȼʡʔ 

272 AssȂȼ Ƚȴ MȳȲȷȱȯȺ IȺȺɃɁɂɀȯɂȽɀɁ ʠȃAMIȄʡʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ 

OfficeȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˾ ʠFȳȰʔ ˿ʕ ˽˻˼˾ʡ ʠȃAMI IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡʔ 

273 PPA ȳɂ ȯȺʔʕ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ FȳȰʔ ˼˻ʕ ˽˻˼˿ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ 

˼˼ ʠMȯɇ ˽˻ʕ ˽˻˼˿ʡ ʠȃPPA ȳɂ ȯȺʔ AȲȲȷɂȷȽȼȯȺ CȽȻȻȳȼɂɁȄʡʔ 

274 AMI Initial Comments at 3. 

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ȻȯɀȹȳɂȾȺȯȱȳ ȳȴȴȳȱɂʕȄ275 ɂȶȳ OȴȴȷȱȳȂɁ ȾɀȽȾȽɁȯȺ ɀȳɁɂɀȷȱɂɁ ɂȶȳ ȯȾȾȺȷȱȯȰȷȺȷɂɇ Ƚȴ ɂȶȳ Ɂȯȴȳ ȶȯɀȰȽɀ ȰȽɂȶ ȷȼ 

ɂȳɀȻɁ Ƚȴ ȯ ɃɁȳɀȂɁ ȷȲȳȼɂȷȴɇ ȯȼȲ ɂȶȳ ȼȯɂɃɀȳ ʠȳȲɃȱȯɂȷȽȼȯȺʕ ɀȳȺȷȵȷȽɃɁʕ Ƚɀ ȱȶȯɀȷɂȯȰȺȳʡ Ƚf its use. Many 

nonprofits, such as libraries, archives, and museums, are in the business of acquiring and 

preserving unique and important works, and have a mission to make them available. When such 

works are orphaned, realizing this mission becomes fraught with legal uncertainty.276 The 

OȴȴȷȱȳȂɁ Ɂȯȴȳ ȶȯɀȰȽɀ ȾɀȽȾȽɁȯȺ ȷɁ ȰȯɁȳȲ Ƚȼ ɂȶȳ ȴȯȱɂ ɂȶȯɂ, usually, public access to or display of an 

orphan work by a library or museum occurs without any kind of monetary compensation for the 

owner, so it is appropriate, should the owner re-appear, that the remedy be the removal of the 

work from public view rather than reasonable compensation, which in many cases would be zero. 

Additionally, the entities that qualify for the safe harbor provision must still file a Notice of Use 

document with the Copyright Office. And, of course, where a finder of fact determines that a 

non-profit user failed to perform a qualifying search or failed to comply with any of the 

procedural mechanisms contained in the proposed legislation, then that user may be liable for the 

full set of remedies available under the Copyright Act, including statutory damages. 

iii. Effect of Registration on Monetary Damages 

The proposed legislation includes a provision allowing courts, when determining 

reasonable compensation, to take into account the value, if any, added to a work by virtue of its 

registration with the Copyright Office. This provision, originally proposed as part of the 2008 

House bill, seeks to address circumstances where a qualifying search fails to uncover the 

copyright owner even though the work in question is registered and the Copyright Office records 

are examined (as would ordinarily be required). This can happen, for example, with a lyric-less 

sound recording, or a work of visual art, with no textual search terms available to use in 

searching. Thus, reasonable compensation in such instances should include a measure of the 

damages available for the infringement of the registered work, even if the work in question was 

initially unable to be located through a qualifying search. This provision is intended to encourage 

registration and reward those who have registered their works with the Office. It also reflects the 

275 PPA et al. Additional Comments at 12. 

276 See, e.g., Museum of Fine Arts, Boston, Initial Comments Submitted in Response to U.S. Copyright 

OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˽ ʠFȳȰʔ ˼ʕ ˽˻˼˾ʡ ʠȃBȳȱȯɃɁȳ Ƚȴ ɂȶȳ Ⱥȯȱȹ Ƚȴ ȯȼɇ ɂɇȾȳ Ƚȴ safe harbor for 

those who, despite a good faith effort, are unable to locate a rights holder for an orphan work, the MFA is 

faced with limited options with regard to how to treat these works: (1) minimize its exposure to risk and 

restrict these images from distribution or digital display which in most cases will result in the total 

restriction of the public from these works, or (2) accept the risk of potential liability resulting from 

providing digital access to these works. These are unacceptable options for any cultural heritage institution 

ɂȽ Ȱȳ ȴȽɀȱȳȲ ɂȽ Ʌȳȷȵȶ ȯȼȲ ȲȽ ȺȷɂɂȺȳ ȷȴ ȯȼɇɂȶȷȼȵ ɂȽ ɁȳɀɄȳ ɂȶȳ ȾɃɀȾȽɁȳ Ƚȴ ɂȶȳ ȱȽȾɇɀȷȵȶɂ ɁɇɁɂȳȻʔȄʡʔ 

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reality that an owner who registers his or her work likely has more interest in its exploitation. 

iv. Injunctive Relief 

Under the draft legislation, courts in most cases may enjoin any infringement alleged in a 

civil action, including by stopping further copying or distribution of the orphaned work. Where 

users have shown themselves to be acting in good faith by meeting the requirements of a 

reasonably diligent search, any injunctive relief, however, should account for the harm caused by 

ɃɁȳɀɁȂ ɀȳȺȷȯȼȱȳ Ƚȼ ɂȶȳ ȽɀȾȶȯȼ ɅȽɀȹɁ ȾɀȽɄȷɁȷȽȼʔ TȶɃɁʕ ɂȶȳ Ȳɀȯȴɂ ȺȳȵȷɁȺȯɂȷȽȼ ɅȽɃȺȲ ȼȽɂ ȱȽȻȾȺȳɂȳȺɇ 

bar injunctive relief in all circumstances: for example, a court could enjoin the further printing or 

publication of copies of an orphaned work, but permit the retail sale of existing copies. 277 

And in the case of derivative works created with orphans, the draft legislation 

significantly limits the availability of injunctive relief. Where a user has created a derivative work 

ȱȽȼɂȯȷȼȷȼȵ ȯ ȃɁȷȵȼȷȴȷȱȯȼɂ ȯȻȽɃȼɂ Ƚȴ ȽɀȷȵȷȼȯȺ ȳɆȾɀȳɁɁȷȽȼʕȄ ɂȶȳ ȵȳȼȳɀȯȺ ȾɀȽɄȷɁȷȽȼ Ʌȷɂȶ ɀȳɁȾȳȱɂ ɂȽ 

injunctive relief, which dates back to the 2006 Orphan Works Report, remains the same in the 

current draft: a user may, upon paying reasonable compensation to the owner of the work in a 

reasonably timely manner and providing attribution (where requested), avoid an injunction and 

continue to prepare and use the new work. A court may determine that payment of a percentagebased royalty constitutes reasonable compensation. This provision accounts for the reliance 

interest of the user, who – based upon a qualifying but unsuccessful search for the copyright 

owner – may have created a new work that combines the orphan work with his own significant 

original expression in a way that is effectively impossible to untangle without doing damage to 

the new work.278 

While limiting injunctive relief encourages users to utilize and invest in derivative works 

based on orphan works, it does not do so without exacting some cost.279 The restriction on the 

277 See 2006 REPORT, supra note 9, at 120-21. 

278 See, e.g., Software & Info. Indus. AssȂȼ ʠȃSIIAȄʡʕ CȽȻȻȳȼɂɁ Submitted in Response to U.S. Copyright 

OȴȴȷȱȳȂɁ FȳȰʔ ˼˻ʕ ˽˻˼˿ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˼ȁ ʠMȯɇ ˽˻ʕ ˽˻˼˿ʡ ʠȃSIIA AȲȲȷɂȷȽȼȯȺ CȽȻȻȳȼɂɁȄʡ ʠȃWȶȳɀȳ ɂȶȳ 

ȽɀȾȶȯȼ ɅȽɀȹ ȯȼȲ ɂȶȳ ɃɁȳɀȂɁ ȱȽȼɂɀȷȰɃɂȷȽȼ ɂȽ ɂȶȳ ȲȳɀȷɄȯɂȷɄȳ ɅȽɀȹ ȯɀȳ ȷȼɁȳȾȯɀȯȰȺɇ ȱȽȻȷȼȵȺȳȲ Ʌȷɂȶȷȼ ɂȶȳ 

derivative work, injunctive relief may cause the user more harm than the harm caused to the copyright 

ȽɅȼȳɀ Ȱɇ ȯȺȺȽɅȷȼȵ ɂȶȳ ɃɁȳɀ ɂȽ ȱȽȼɂȷȼɃȳ ɂȽ ɃɁȳ ɂȶȳ ɅȽɀȹʔȄʡʔ 

279 In fact, the provision was extensively debated during consideration of the Shawn Bentley Act in 2008. 

See generally, MPAA Initial Comments at 8. See also Promoting the Use of Orphan Works, supra note 184, at 3 

(statement of Rep. Howard Berman, Chairman, Subcomm. on Courts, the Internet, & Intell. Prop.) 

ʠȷȲȳȼɂȷȴɇȷȼȵ ȃʢȶʣȽɅ ȻɃȱȶ Ƚȴ ɂȶȳ ȷȼȴɀȷȼȵȳɀȂɁ ȽɅȼ ȳɆȾɀȳɁɁȷȽȼ ɁȶȽɃȺȲ Ȱȳ ɀȳȿɃȷɀȳȲ ɂȽ ȾɀȳɄȳȼɂ ȯȼ ȷȼȸɃȼȱɂȷȽȼȄ ȯɁ 

an open question during congressional deliberations in 2008); id. at 89-90 (statement of Corinne P. 

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scope of injunctive relief with respect to derivative works applies for the entire term of the 

copyright in the orphan work. Therefore, a user could continue to use a derivative work for 

decades despite objections from the owner, as well as enjoy copyright protection for that 

derivative work.280 Some have criticized this result as inequitable,281 with one commenter 

desȱɀȷȰȷȼȵ ȷɂ ȯɁ ȃȽȰȺȷȵȷȼȵ ȯɃɂȶȽɀɁ ȾȳɀȻȯȼȳȼɂȺɇ ɂȽ ɂȽȺȳɀȯɂȳ ȳɄȳȼ ȲȳɀȷɄȯɂȷɄȳ ɃɁȳɁ ɂȶȳɇ ȴȷȼȲ ȽȴȴȳȼɁȷɄȳ 

Ƚɀ ɂȶȯɂ ȲȷɁɂȽɀɂ ɂȶȳȷɀ ɅȽɀȹɁʔȄ282 The Office acknowledges that, but for the designation of the work 

ȯɁ ȯȼ ȃȽɀȾȶȯȼʕȄ ɂȶȳ ȽɅȼȳɀ ɅȽɃȺȲ ȼȽɀȻȯȺȺɇ Ȱȳ ȯȺȺȽɅȳȲ ɂȽ Ɂȳȳȹ ȷnjunctive relief on the basis that 

her derivative work rights were being infringed.283 Not allowing such relief in an orphan works 

situation is particularly difficult, the Office notes, when the owner is also the author of the work, 

and risks suffering harm that, in the cȽɃɀɂȂɁ ɄȷȳɅʕ ȱȯȼȼȽɂ be remedied by reasonable 

compensation, such as serious damage to ɂȶȳ ȯɃɂȶȽɀȂɁ ɀȳȾɃɂȯɂȷȽȼ. 

Iȼ ȽɀȲȳɀ ɂȽ ȯȱȹȼȽɅȺȳȲȵȳ ȯȼȲ ȾɀȽɄȷȲȳ ȯ ȻȳȯɁɃɀȳ Ƚȴ ɀȳȲɀȳɁɁ ȴȽɀ ɂȶȷɁ ȾɀȽȰȺȳȻʕ ɂȶȳ OȴȴȷȱȳȂɁ 

draft legislation adds a new provision with respect to certain derivative uses. The new provision 

allows author-owners to seek injunctive relief for the use of their orphan work in an unauthorized 

derivative work, but only if the continued preparation or use of the new work would be 

prejudicial to the author-ownerȂɁ ȶȽȼȽɀ Ƚɀ ɀȳȾɃɂȯɂȷȽȼʕ ȯȼȲ a Court finds that such harm cannot be 

cured through reasonable compensation. The Office is introducing this concept for the first time 

in this Report, with the intention of preserving for a limited set of owners the same derivative 

works rights they enjoy outside of the orphan works context and which are consistent with global 

norms and essential to a twenty-first century copyright law. To be clear, this is not a new cause of 

action – the plaintiff must hold at least one of the Section 106 rights in order to bring suit in the 

first place – but it does acknowledge the personal nature of reputational harm, in that the owner 

Kevorkian, F. Schumacher & Co.) ʠȃʢIʣȴ ȽɃɀ ʢɂȳɆɂȷȺȳʣ ȲȳɁȷȵȼɁ ȯɀȳ ȷȼȱȽɀȾȽɀȯɂȳȲ ȷȼɂȽ ȯ ȲȳɀȷɄȯɂȷɄȳ ɅȽɀȹʕ then 

we find ourselves in situations where that design lives on into another piece of work which we may not 

ȴȷȼȲ ɁȯɂȷɁȴȯȱɂȽɀɇ ɂȽ ɃɁ ȳɄȳȼ ȷȴ ɀȳȯɁȽȼȯȰȺȳ ȱȽȻȾȳȼɁȯɂȷȽȼ ȷɁ ȯȱȱȽɀȲȳȲʔȄʡʔ 

280 See Part II.B.5.e.iii, Copyright for Derivative Works and Compilations, infra. 

281 See Ginsburg, Recent Developments in US Copyright Law, supra note 269, at 8-9; AȻʔ SȽȱȂɇ Ƚȴ IȺȺɃɁɂɀȯɂȽɀɁ 

PȂɁȶȷȾ ʠȃASIPȄʡʕ RȳȾȺɇ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ 

IȼȿɃȷɀɇ ȯɂ ˽ ʠȃBȳȱȯɃɁȳ ɂȶȳ ȺȳȵȷɁȺȯɂȷȽn prohibited injunctions, in recognition of the ȷȼȴɀȷȼȵȳɀȂɁ ȷȼɄȳɁɂȻȳȼɂ in 

ɃɂȷȺȷɈȷȼȵ ȯȼ ʦȽɀȾȶȯȼȳȲȂ ɅȽɀȹʕ ȷɂ ȳȼɁɃɀȳȲ ɂȶȯɂ artistsȃ exclusive rights could never again be effectively exercisedʔȄʡ 

(underlining and italics in original). 

282 Ginsburg, Recent Developments in US Copyright Law, supra note 269, at 10. 

283 See, e.g., Pearson Educ., Inc. v. Nugroho, No. 08 Civ. 8034, 2009 U.S. Dist. LEXIS 101600 (S.D.N.Y. Oct. 27, 

2009) (injunction granted for infringement of derivative work right); CBS Operations, Inc. v. Reel Funds Intȃl, 

No. 3-06-CV-0588-L, 2007 U.S. Dist. LEXIS 58939 (N.D. Tex. Aug. 13, 2007) (same). 

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must also be an author of the work.284 Indeed, the language of this provision partially tracks that 

of the Visual Artists Rights Act (VARA) of 1990,285 and in doing so recognizes the moral interest 

and legitimate concerns of authors who confront unauthorized derivative works based upon their 

creations.286 Of course, the user remains able to mount a fair use defense against such an 

injunction, which is particularly important given the freedom of expression issues raised when 

copyright infringement injunctions are sought.287 

v. Injunctive Relief: Limitations Regarding State Actors 

States and their employees generally are not subject to monetary damages for copyright 

infringement.288 This removes, to some degree, the incentive for state actors, such as universities, 

284 An entity that owns the copyright in a work entirely because of a transfer, for example, and has no 

personal reputational interest at stake, would not be allowed to seek an injunction under this provision. 

Likewise, an author who has entirely divested herself of all rights identified in Section 106 would have no 

ownership standing to bring an infringement action in the first place. 

285 Pub. L. No. 101-650, 104 Stat. 5089, 5128 (1990). VARA appears in the Copyright Act as 17 U.S.C. § 106A. 

286 See, e.g., A˽IM IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ ȯɂ ˽ ʠȃThe Orphan Work should additionally not be made available for 

use as part of a derivative work with another musical work, such as a ʦmash-upȂ, which could result in a 

ȼȳɅ ȻɃɁȷȱȯȺ ɅȽɀȹ ɂȶȳ ȽɀȷȵȷȼȯȺ ȱȽȾɇɀȷȵȶɂ ȽɅȼȳɀ Ȼȷȵȶɂ ȼȽɂ ȯȾȾɀȽɄȳ ʔ ʔ ʔ ʔȄʡʗ see also Joseph Ford, Comments 

SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ FȳȰʔ ˼˻ʕ ˽˻˼˿ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˼ ʠAȾɀʔ ˼˻ʕ ˽˻˼˿ʡʗ 

Andrea MȷɁɂɀȳɂɂȯʕ RȳȾȺɇ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ 

of Inquiry at 1 (Feb. 18, 2013). It is also worth pointing out that a plaintiff owner/author who is 

remunerated for the use of her (previously) orphan work as part of a derivative work, but who believes that 

the continued use of her work in this manner damages her reputation (e.g., who claims a violation of her 

right of integrity as the author of the work), may find support for her position under Section 106A, 

provided the work in question is one of visual art. Similar protections are available in state law statutes 

concerning authorship rights in works of fine art (e.g., California Art Preservation Act, CAL. CIV. CODE § 

ȄȃȂʗ NȳɅ YȽɀȹ AɀɂȷɁɂɁȂ AɃɂȶȽɀɁȶȷȾ RȷȵȶɂɁ Act, N.Y. ARTS & CULT. AFF. LAW § 14.03), to the extent such 

statutes are not preempted by the Copyright Act (see 3 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON 

COPYRIGHT, §§ 8D.07[C], 8D.08[C] (2015)). 

287 See, e.g., Mark A. Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 

48 DUKE L.Jʔ ˼˿Ȃʕ ˽˻ȃ ʠ˼ȄȄȃʡ ʠȃTȶȳ ȴȯȷɀ ɃɁȳ ȲȽȱɂɀȷȼȳ ȶȯɁ Ȱȳȳȼ ȷȼɂȳɀȾɀȳɂȳȲ ɂȽ ȾɀȽɂȳȱɂ ɃȼȯɃɂȶȽɀȷɈȳȲ ȾȯɀȽȲȷȳɁ Ƚȴ 

ȯ ȱȽȾɇɀȷȵȶɂ ȽɅȼȳɀȂɁ ɅȽɀȹɁʕ ȲȳɁȾȷɂȳ ɂȶȳ ʦȻȽɀȯȺȂ ȽȰȸȳȱɂȷȽȼ ɂȶȳ ȽɅȼȳɀ ȺȷȹȳȺɇ ȶȯɁ ɂȽ ɂȶȳ ȾɃblication of such a 

ȾȯɀȽȲɇʔȄ ʠȱȷɂȷȼȵ Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)). 

288 See Chavez v. Arte Publico Press, 204 F.3d 601, 603, 608 (5th Cir. 2000) (instructing the district court to 

dismiss copyright infringement claims against a state entity because that entity is immune from money 

ȲȯȻȯȵȳɁʕ ȯȼȲ ȶȽȺȲȷȼȵ ɂȶȯɂ ɂȶȳ CȽȾɇɀȷȵȶɂ RȳȻȳȲɇ CȺȯɀȷȴȷȱȯɂȷȽȼ Aȱɂʕ Ʌȶȷȱȶ ɁȽɃȵȶɂ ɂȽ ȯȰɀȽȵȯɂȳ ɂȶȳ ɁɂȯɂȳɁȂ 

Eleventh Amendment immunity to suit for copyright infringement, is unconstitutional). Cf. Fla. Prepaid 

Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 647-48 (1999) (finding that the Eleventh 

Amendment bars suits against State entities for patent infringement); Seminole Tribe v. Fla., 517 U.S. 44, 54 

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to engage in qualifying searches for the owners of orphan works, as their monetary liability is 

zero either way. State actors are, however, subject to limited injunctive relief if found to have 

committed copyright infringement. If a state actor, after performing a qualifying search, uses an 

orphan work as part of a new derivative work, and the owner emerges, the owner potentially 

could be barred both from injunctive relief (under the orphan works statute) and from damages 

(under the Eleventh Amendment), thus leaving the copyright owner with no remedy.289 To 

encourage state actors to search for orphan work owners, the proposed legislation provides that 

state actors cannot take advantage of the limitation on injunctive relief unless they engage in a 

qualifying search and pay any reasonable compensation either agreed upon with the owner of the 

work at issue or determined by a court. If a state actor refuses to pay the reasonable 

compensation, it becomes liable for full injunctive relief under Title 17. Similar provisions were in 

both the House and Senate 2008 orphan works bills. 

e. Relationship to Other Provisions of Title 17 

i. Fair Use Savings Clause 

The draft legislation includes a specific provision stating that it does not affect any right, 

limitation, or defense to copyright infringement, including fair use, under Title 17. A fair use 

ȃɁȯɄȷȼȵɁ ȱȺȯɃɁȳȄ Ʌas included in earlier bills and remains important today. Retaining the ability 

of unlicensed users of orphan works to defend their activities based upon fair use will allow the 

continued development of the fair use doctrine in the courts. The application of fair use to new 

fact patterns, such as uses of orphan works, is an essential aspect of copyright law jurisprudence, 

and should not be foreclosed by the introduction of a limitation on liability. Indeed, the Library 

Copyright Alliance, which otherwise ȽȾȾȽɁȳɁ ȯȼɇ ȽɀȾȶȯȼ ɅȽɀȹɁ ȺȳȵȷɁȺȯɂȷȽȼʕ ɁɂȯɂȳȲ ɂȶȯɂʕ ȃʢȷʣȼ ȯȼɇ 

event, any legislation in this area must contain an explicit savings clause similar to that in 17 

UʔSʔCʔ § ˼˻ȃʠȴʡʠ˿ʡʕ ɂȶȯɂ ȼȽɂȶȷȼȵ ȷȼ ɂȶȷɁ ȾɀȽɄȷɁȷȽȼ ʦȷȼ ȯȼɇ Ʌȯɇ ȯȴȴȳȱɂɁ ɂȶȳ ɀȷȵȶɂ Ƚȴ ȴȯȷɀ ɃɁȳ ȯɁ 

(1996) (affirming that the Eleventh Amendment generally bars suits for monetary damages against a 

state). It should be noted, however, that injunctive relief is still available against individual state 

employees, who are not considered to be acting within the scope of their official duties when they violate a 

valid federal law. See, e.g., Ex Parte Young, 209 U.S. 123, 155-56 (1908). In 2000, former Register of 

Copyrights Marybeth Peters testified in the wake of Chavez that the Ex Parte Young ȲȽȱɂɀȷȼȳ ȃȾɀȽɄȷȲȳɁ ȽȼȺɇ 

limited relief . . . because it provides no compensation for the damages already inflicted upon a copyright 

ȽɅȼȳɀ ȲɃȳ ɂȽ ȾȯɁɂ ȷȼȴɀȷȼȵȳȻȳȼɂ Ȱɇ ȯ SɂȯɂȳʔȄ State Sovereign Immunity and Protection of Intellectual Property: 

Hearing Before the Subcomm. on Courts & Intellectual Prop. of the H. Comm. on the Judiciary, 106th Cong. 55 

(2000) (statement of Marybeth Peters, Register of Copyrights). 

289 See SIIA Additional Comments at 14-15. 

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ȾɀȽɄȷȲȳȲ Ȱɇ ɁȳȱɂȷȽȼ ˼˻ȂʔȂȄ290 In situations where unauthorized use of what may be an orphan 

work clearly falls under fair use, it makes sense for this exception to remain available.291 

Additionally, less risk-averse entities may prefer testing the limits of fair use instead of 

undertaking good faith diligent searches, and they should not be precluded from making that 

choice. 

ii. Preservation of Statutory Licenses 

The proposed legislation makes clear that if the planned use of an orphan work would be 

permitted by a statutory license – for example, the Section 114 public performance for sound 

recordings license or the Section 115 mechanical license for musical works – that license applies 

and the user may not rely upon the orphan works provision. This provision insures that the 

statutorily mandated license fee will be paid even though the owner of the work cannot be 

located by the user at that particular time. 

iii. Copyright for Derivative Works and Compilations 

The proposed legislation clarifies that, despite the language of 17 U.S.C. § 103(a),292 any 

user of an orphan work who qualifies for the limitation on remedies may still enjoy copyright 

protection for a compilation or derivative work that employs preexisting unlicensed orphan 

works. Like those sections of the bill relating to injunctive relief, this provision seeks to 

incentivize good faith uses of orphan works, despite the fact that they are technically infringing. 

Users are encouraged to engage in productive uses of otherwise dormant orphan works, 

provided the works qualify under the diligent search standard. 

f. Report to Congress 

The final section of the proposed legislation requires the Register of Copyrights to submit 

ȯ ɀȳȾȽɀɂ ɂȽ CȽȼȵɀȳɁɁ Ƚȼ ɂȶȳ ȃȷȻȾȺȳȻȳȼɂȯɂȷȽȼ ȯȼȲ ȳȴȴȳȱɂɁȄ Ƚȴ ɂȶȳ ȽɀȾȶȯȼ ɅȽɀȹɁ ȺȷȻȷɂȯɂȷȽȼ Ƚȼ 

remedies, within five years of its enactment. The report must also include appropriate 

290 LCA Initial Comments at 8. We recognize, however, that some maintain that even a fair use savings 

clause might not be sufficient. See, e.g., Tr. at 366:22-˾ȁȃʖ˼ ʠMȯɀʔ ˼˻ʕ ˽˻˼˿ʡ ʠKɀȷɁɂȯ CȽɆʕ AɁɁȂȼ Ƚȴ RȳɁȳȯɀȱȶ 

LȷȰɀȯɀȷȳɁʡ ʠȼȽɂȷȼȵ ɂȶȯɂ ȃɂȶȳ ɁȯɄȷȼȵɁ ȱȺȯɃɁȳ Ȼȷȵȶɂ ȼȽɂ Ȱȳ ȱȽȻȾȺȳɂȳȺɇ ȯȲȳȿɃȯɂȳȄʡʔ 

291 See, e.g., Berkeley Digital Library Copyright Project Initial Comments at 16; AAP, Reply Comments 

SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˿ ʠMȯɀʔ ȁʕ ˽˻˼˾ʡʔ 

292 ȃThe subject matter of copyright as specified by section 102 includes compilations and derivative works, 

but protection for a work employing preexisting material in which copyright subsists does not extend to 

ȯȼɇ Ⱦȯɀɂ Ƚȴ ɂȶȳ ɅȽɀȹ ȷȼ Ʌȶȷȱȶ ɁɃȱȶ ȻȯɂȳɀȷȯȺ ȶȯɁ Ȱȳȳȼ ɃɁȳȲ ɃȼȺȯɅȴɃȺȺɇʔȄ ˼Ȃ UʔSʔCʔ § 103(a). 

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recommendations for legislative changes, if any.293 Tȶȳ OȴȴȷȱȳȂɁ ˽˻˻ȁ RȳȾȽɀɂ ȱȽȼɂȯȷȼȳȲ ȯ 

recommendation that an orphan works provision should sunset after ten years, in ordȳɀ ɂȽ ȃȯȺȺȽɅ 

Congress to examine whether and how the orphan works provision is working in practice, and 

Ʌȶȳɂȶȳɀ ȯȼɇ ȱȶȯȼȵȳɁ ȯɀȳ ȼȳȳȲȳȲʔȄ294 We believe that a five-year report will serve the same 

essential review function as a sunset provision, without the risk that users who have relied upon 

the orphan works limitation on liability will suddenly find themselves subject to traditional 

copyright damages and injunctions. 

III. MASS DIGITIZATION 

As discussed above, the legal issues surrounding both the case-by-case use of orphan 

works and mass digitization projects arise out of practical obstacles to copyright clearance. By its 

ȼȯɂɃɀȳʕ ȶȽɅȳɄȳɀʕ ȻȯɁɁ ȲȷȵȷɂȷɈȯɂȷȽȼ ȷɁ ȼȽɂ ȯȻȳȼȯȰȺȳ ɂȽ ȯ ɁȽȺɃɂȷȽȼ ȾɀȳȻȷɁȳȲ Ƚȼ ȯ ɃɁȳɀȂɁ ȲȷȺȷȵȳȼɂ 

search for individual copyright owners: the vast number of rightsholders from whom permission 

may be required in order to digitally reproduce and offer access to a large collection of works 

renders such a model impracticable in this context. A framework for mass digitization 

accordingly requires a distinct response, and therefore we consider the topic separately. 

Iȼ ɂȶȳ OȴȴȷȱȳȂɁ ɄȷȳɅʕ ɂȶȳ ȺȳȵȷɂȷȻȯɂȳ ȵȽȯȺɁ Ƚȴ ȻȯɁɁ ȲȷȵȷɂȷɈȯɂȷȽȼ ȱȯȼȼȽɂ Ȱȳ ȯȱȱȽȻȾȺȷɁȶȳȲ Ƚɀ 

reconciled under existing law other than in narrow circumstances. For this reason, as explained 

below, we are recommending the adoption of an extended collective licensing pilot program that 

would provide full-text access to works under conditions to be agreed upon between rightsholder 

and user representatives. The general parameters of this framework are discussed below. In lieu 

of proposing draft legislative language at this time, however, the Office is issuing a Notice of 

Inquiry requesting public comment on several issues that we believe warrant additional 

stakeholder input. The Office will utilize these comments to facilitate further dialogue regarding 

various elements of the pilot program, and will thereafter develop a formal legislative proposal 

ȴȽɀ CȽȼȵɀȳɁɁȂɁ ȱȽȼɁȷȲȳɀȯɂȷȽȼʔ 

A. Overview 

Tȶȳ ɂȳɀȻ ȃȻȯɁɁ ȲȷȵȷɂȷɈȯɂȷȽȼȄ ȲȽȳɁ ȼȽɂ ȺȳȼȲ ȷɂɁȳȺȴ ɂȽ ȯ Ⱦrecise definition. As an initial 

matter, there is no generally agreed-upon standard for determining whether a project is 

ɁɃȴȴȷȱȷȳȼɂȺɇ Ⱥȯɀȵȳ ɂȽ Ȱȳ ȱȽȼɁȷȲȳɀȳȲ ȯ ȃȻȯɁɁȄ ȲȷȵȷɂȷɈȯɂȷȽȼʔ Iȼ ȷɂɁ ˽˻˼˼ Legal Issues in Mass 

293 This requirement is the same as the report requirements in the 2006 orphan works bill (H.R. 5439) and 

both 2008 orphan works bills (S. 2913 and H.R. 5889). 

294 2006 REPORT, supra note 9, at 14. 

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Digitization publication, the Office observed that, in the context of books, the term had come to 

Ȼȳȯȼ ȃȺȯɀȵȳ-ɁȱȯȺȳ ɁȱȯȼȼȷȼȵʕȄ ȯȼȲ ȱȷɂȳȲ ɂȶȳ ɂȶȳȼ-15 million-volume Google Books project as a 

ȃȱȽȼɁȳȼɁɃɁȄ ȳɆȯȻȾȺȳ Ƚȴ ȯ ȾɀȽȸȳȱɂ ɂȶȯɂ ɅȽɃȺȲ ȿɃȯȺȷȴɇʔ295 At the same time, the Office noted the 

possibility tȶȯɂ ȃȯ ȾɀȽȸȳȱɂ ȱȯȾɂɃɀȷȼȵ ȴȯɀ ȴȳɅȳɀ ȰȽȽȹɁ Ȼȷȵȶɂ ȯȺɁȽ Ȱȳ ȱȽȼɁȷȲȳɀȳȲ ȻȯɁɁ 

ȲȷȵȷɂȷɈȯɂȷȽȼʔȄ296 In general, this Report uses the term to refer to projects in which the scale of 

digital copying is so extensive as to make the individual clearance of rights a practical 

impossibility. Of course, any legislative solution would need to attempt to define both the policy 

rationale and the universe of projects to be covered. We describe potential definitional 

frameworks in Part III.C below. 

Moreover, the concept of mass digitization, in general, cannot easily be defined by type of 

work, purpose, or use. While the term is commonly associated with library projects – for 

example, creating digital copies of an entire collection to facilitate preservation and access – in 

many ȱȯɁȳɁ ȃȻȯɁɁ ȲȷȵȷɂȷɈȯɂȷȽȼ ȷȼɄȽȺɄȳɁ ȯȱɂȷɄȷɂȷȳɁ ɂȶȯɂ ȳɆȱȳȳȲ ɂȶȳ ȾɃɀȾȽɁȳ Ƚȴ ȰɃȷȺȲȷȼȵ ȯ ȲȷȵȷɂȯȺ 

ȺȷȰɀȯɀɇʔȄ297 AɁ Ƚȼȳ ɁɂɃȲɇ ȽȰɁȳɀɄȳɁʕ ȃɂȶȳ ȺȳȵȯȺ ȷɁɁɃȳɁ ȯɀȷɁȷȼȵ ȴɀȽȻ ȻȯɁɁ ȲȷȵȷɂȷɈȯɂȷȽȼ ȾɀȽȸȳȱɂɁ ȶȯɄȳ 

common features with those emerging from other activities of the web economy, such as . . . the 

systematic extraction and reutilization of the contents of various databases to make price 

ȱȽȻȾȯɀȷɁȽȼɁʕ Ƚɀ ɂȶȳ ȯȵȵɀȳȵȯɂȷȽȼ Ƚȴ ȲȷȵȷɂȯȺ ȱȽȼɂȳȼɂ ȷȼɂȽ ɅȳȰ ɀȳɁɃȺɂɁʔȄ298 Similarly, a participant in 

ɂȶȳ OȴȴȷȱȳȂɁ ɀȽɃȼȲɂȯȰȺȳɁ ȱȷɂȳȲ ȱȽȻȻercial databases of student academic papers and attorney 

court filings (both of which have been at issue in recent litigation) as examples of activities that 

could be described as mass digitization insofar as they involve the digital copying and storage of 

large numbers of works.299 

Beyond definitional challenges, mass digitization presents a variety of complex policy 

considerations, including both opportunities and risks. Some mass digitization projects offer 

considerable public benefits. In the Google Books litigation, for example, the district court 

identified several valuable purposes served by that project, including facilitating research, both 

ɂȶɀȽɃȵȶ ɂɀȯȲȷɂȷȽȼȯȺ ȻȳɂȶȽȲɁ ȯȼȲ ȼȳɅȺɇ ȲȳɄȳȺȽȾȳȲ ȃȲȯɂȯ ȻȷȼȷȼȵȄ ɂȳȱȶȼȷȿɃȳɁʗ ȳɆȾȯȼȲȷȼȵ ȯȱȱȳɁɁ 

295 LEGAL ISSUES IN MASS DIGITIZATION, supra note 145, at 8-9. 

296 Id. at 9. 

297 BORGHI & KARAPAPA, supra note 155, at 2. 

298 Id. 

299 Tr. at 112:15-113:12, 113:17-115:6, 139:15-140:12 (Mar. 11, 2014) (Jonathan Band, LCA); see A.V. ex rel. 

Vanderhye v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009); White v. West Publȃg Corp., 29 F. Supp. 3d 396 

(S.D.N.Y. 2014). 

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to books, particularly for traditionally underserved populations such as the print-disabled; 

ȾɀȳɁȳɀɄȷȼȵ ȃʢȽʣȺȲȳɀ ȰȽȽȹɁ ʔ ʔ ʔ ɂȶȯɂ ȯɀȳ ȴȯȺȺȷȼȵ ȯȾȯɀɂ ȰɃɀȷȳȲ ȷȼ ȺȷȰɀȯɀɇ ɁɂȯȱȹɁȄʗ ȯȼȲ ȵȳȼȳɀȯɂȷȼȵ ȼȳɅ 

audiences and sources of income for authors and publishers.300 As the United States recognized 

ȷȼ ɂȶȯɂ ȱȯɁȳʕ ȃʢȰʣɀȳȯɂȶȷȼȵ Ⱥȷȴȳ ȷȼɂȽ ȻȷȺȺȷȽȼɁ Ƚȴ ɅȽɀȹɁ ɂȶȯɂ ȯɀȳ ȼȽɅ ȳȴȴȳȱɂȷɄȳȺɇ ȲȽɀȻȯȼɂʕ ȯȺȺȽɅȷȼȵ 

users to search the text of millions of books at no cost . . . and enhancing the accessibility of such 

works for the disabled and others are all ɅȽɀɂȶɇ ȽȰȸȳȱɂȷɄȳɁʔȄ301 

These benefits are also receiving greater recognition internationally. As noted, the 

European Commission assisted in the negotiation of the 2011 Memorandum of Understanding 

(MOU) to encourage the digitization of out-of-commerce books and journals in Europe. The 

MOU ȽȰɁȳɀɄȳɁ ɂȶȯɂ ȃɂȶȳ Ⱥȯɀȵȳ-ɁȱȯȺȳ ȲȷȵȷɂȷɁȯɂȷȽȼ ȯȼȲ Ȼȯȹȷȼȵ ȯɄȯȷȺȯȰȺȳ Ƚȴ EɃɀȽȾȳȂɁ ȱɃȺɂɃɀȯȺ 

heritage contained in the collections of publicly accessible cultural institutions is in the public 

interest as well as in the interest Ƚȴ ɂȶȳ ȱɃȺɂɃɀȯȺ ȯȼȲ ȱɀȳȯɂȷɄȳ ɁȳȱɂȽɀʔȄ302 

Realizing such benefits, however, may require qualification of certain exclusive rights 

under copyright law. Indeed, because of the practical impossibility of securing clearances on a 

work-by-work basis, current mass digitization projects in the United States either are limited to 

public domain works or rely on the fair use doctrine to justify copying and using works or parts 

Ƚȴ ɅȽɀȹɁ ɅȷɂȶȽɃɂ ɂȶȳ ɀȷȵȶɂɁȶȽȺȲȳɀɁȂ ȯȲɄȯȼȱȳ ȯɃɂȶȽɀȷɈȯɂȷȽȼʔ WȶȷȺȳ ȱȳɀɂȯȷȼȺɇ ɁȽȻȳ Ƚȴ ɂȶȳɁȳ uses 

Ȼȯɇ Ȱȳ ȴȯȷɀʕ Ȼȯȼɇ ȶȯɄȳ ȯɀȵɃȳȲ ɂȶȯɂ ɁɃȱȶ ȯ ɁɇɁɂȳȻ ȃɁȳȳȻɁ ɂȽ ɂɃɀȼ ȱȽȾɇɀȷȵȶɂ Ƚȼ ȷɂɁ ȶȳȯȲʖ ɅȶȷȺȳ 

copyright is a system of ex ante permissions, mass digitization comes with a compelling demand 

to revert copyright into an opt-ȽɃɂ ɀȳȵȷȻȳȄ ȷȼ Ʌȶȷȱȶ ȯ ȱȽȾɇɀȷȵht owner must take affirmative 

steps to exclude his or her work.303 The district court in the Google Books case emphasized that 

ȱȽȼȱȳɀȼ ȷȼ ɀȳȸȳȱɂȷȼȵ ɂȶȳ ȾɀȽȾȽɁȳȲ ȱȺȯɁɁ ȯȱɂȷȽȼ ɁȳɂɂȺȳȻȳȼɂʕ ȴȷȼȲȷȼȵ ȷɂ ȃȷȼȱȽȼȵɀɃȽɃɁ Ʌȷɂȶ ɂȶȳ 

purpose of the copyright laws to place the onus on copyright owners to come forward to protect 

ɂȶȳȷɀ ɀȷȵȶɂɁ Ʌȶȳȼ GȽȽȵȺȳ ȱȽȾȷȳȲ ɂȶȳȷɀ ɅȽɀȹɁ ɅȷɂȶȽɃɂ ȴȷɀɁɂ Ɂȳȳȹȷȼȵ ɂȶȳȷɀ ȾȳɀȻȷɁɁȷȽȼʔȄ304 

300 Google II, 954 F. Supp. 2d at 287-88. 

301 U.S. Statement of Interest, supra note 8, at 1. 

302 MOU on Out-of-Commerce Works, supra note 82, at 1. 

303 BORGHI & KARAPAPA, supra note 155, at 2; see also, e.g., MPAA, Comments Submitted in Response to U.S. 

CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ FȳȰʔ ˼˻ʕ ˽˻˼˿ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˿-Ȁ ʠMȯɇ ˽˻ʕ ˽˻˼˿ʡ ʠȃMȯɁɁ ȲȷȵȷɂȷɈȯɂȷȽȼ ȾɀȽȸȳȱɂɁ ʠȺȷȹȳ ɂȶȳ 

Google Books Projects) that copy and otherwise exploit copyrighted works without permission represent a 

fuȼȲȯȻȳȼɂȯȺ ȲȳȾȯɀɂɃɀȳ ȴɀȽȻ ɂȶȳ ɃɁɃȯȺ ȱȽȾɇɀȷȵȶɂ ɀɃȺȳ ɂȶȯɂ ȷɂ ȷɁ ɃȾ ɂȽ ɂȶȳ ȱȽȾɇɀȷȵȶɂ ȽɅȼȳɀ ʦɂȽ ȲȽ ȯȼȲ ɂȽ 

ȯɃɂȶȽɀȷɈȳȂ ɂȶȳ ȯȱɂɁ ȺȷɁɂȳȲ ȷȼ SȳȱɂȷȽȼ ˼˻ȁʔȄʡʔ 

304 Google I, 770 F. Supp. 2d at 682. 

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Others have noted more practical concerns. Some stakeholders contend that, absent 

adequate security protections, mass digitization could precipitate the introduction into the 

ȻȯɀȹȳɂȾȺȯȱȳ Ƚȴ ȯ ȴȺȽȽȲ Ƚȴ ɃȼȯɃɂȶȽɀȷɈȳȲ ȲȷȵȷɂȯȺ ȱȽȾȷȳɁ Ƚȴ ȱȽȾɇɀȷȵȶɂȳȲ ɅȽɀȹɁʔ ȃʢWʣȷɂȶ ȼȽ ȺȷȻȷɂɁ Ƚȼ 

ɅȶȽ ȱȽɃȺȲ ɃȼȲȳɀɂȯȹȳ ȻȯɁɁ ȲȷȵȷɂȷɈȯɂȷȽȼʕȄ ɂȶȳɇ ȯɀȵɃȳʕ ȃȱȽȾɇɀȷȵȶɂȳȲ ɅȽɀȹɁ ɅȽɃȺȲ ȷȼȳɄȷɂȯȰȺɇ Ȱȳ 

copied by entities that are not trustworthy, who, for example, might take no steps to prevent 

ȴɃɀɂȶȳɀ ȲȽɅȼɁɂɀȳȯȻ ȱȽȾɇȷȼȵ ȯȼȲ ȲȷɁɂɀȷȰɃɂȷȽȼʔȄ305 The Copyright Office does not take these 

concerns lightly. 

In analyzing these competing considerations, the overarching question is whether the 

copyright system can strike an appropriate balance between facilitating those aspects of mass 

digitization that serve the public interest and safeguarding the rights of copyright owners. The 

Office addresses this issue first by considering whether the legal issues implicated by mass 

ȲȷȵȷɂȷɈȯɂȷȽȼ Ʌȯɀɀȯȼɂ ȯ ȺȳȵȷɁȺȯɂȷɄȳ ɀȳɁȾȽȼɁȳ Ƚɀ Ʌȶȳɂȶȳɀ ȃɂȶȳɁȳ ȯȱɂȷɄȷɂȷȳɁ ʢɁȶȽɃȺȲʣ Ȱȳ Ⱥȳȴɂ ɂȽ ɂȶȳ 

ȻȯɀȹȳɂȾȺȯȱȳ ȯȼȲ ɂȶȳ ȱȽȾɇɀȷȵȶɂ ȺȯɅ ȯɁ ȷɂ ȱɃɀɀȳȼɂȺɇ ȳɆȷɁɂɁʔȄ306 In other words, to what extent are the 

public benefits of mass digitization achievable through legal or voluntary solutions available 

under current law, such as direct or voluntary licensing regimes, the fair use doctrine, corporate 

agreements, or multistakeholder best practices documents? For the reasons explained in the next 

section, the Office concludes that while these approaches can enable a wide variety of mass 

digitization activities, they cannot fully address the legal uncertainty in this area, nor can they 

authorize the full spectrum of uses that the market may desire, and which may, in turn, cause 

varying degrees of concern for authors and other copyright owners. 

We then describe a potential legislative framework that would permit users to digitally 

reproduce and provide online access to a collection of works for certain purposes through an 

extended collective licensing model. Such a system would provide a more comprehensive 

solution by defining the types of mass digitization activities that are permitted without the need 

to engage in a fair use analysis, while ensuring that rightsholders receive some compensation for 

the use of their works. It would, however, present a number of administrative and other 

305 PPA et al. Additional Comments at 6; see also Tr. at 123:11-15 (Mar. 11, 2014) (June Besek, Kernochan 

Cȳȼɂȳɀʡ ʠȃIȴ ɇȽɃ ȯɀȳ ȵȽȷȼȵ ɂȽ ȲȽ ɂȶȷɁʕ ɇȽɃ ȽɃȵȶɂ ɂȽ Ȱȳ ȯȰȺȳ ɂȽ ɁȳȱɃɀȳ ɂȶȳ ȻȯɂȳɀȷȯȺɁ ɂȶȯɂ ɇȽɃ ȶȯɄȳʔ AȼȲ ȷȴ ɇȽɃ 

ȱȯȼȂɂʕ ɂȶȳȼ ɇȽɃ ȽɃȵȶɂ ȼȽɂ Ȱȳ ȯȰȺȳ ɂȽ ȲȽ ȷɂʔȄʡʗ Tɀʔ ȯɂ ˼˽ȄʖȂ-16 (Mar. 11, 2014) (Jan Constantine, Authors Guild, 

Iȼȱʔʡ ʠȃʢIʣȴ ȻȯɁɁ ȲȷȵȷɂȷɈȯɂȷȽȼ ȽȱȱɃɀɁ ȽɃɂɁȷȲȳ ɂȶȳ ȱȽȼɂȳɆɂ Ƚȴ ȯ ɀȳɁȾȳȱɂȯȰȺȳ ȽɀȵȯȼȷɈȯɂȷȽȼʕ ȰɃɂ ȷȼ ɂȶȳ ȱȽȼɂȳɆɂ Ƚȴ ȯ 

pirate or a niche collector of civil war books and they are going to mass digitize 50 of the books that their 

followers want to read and they just send them out there with no software protection and no cares in the 

ɅȽɀȺȲ ȯȰȽɃɂ Ȼȯɀȹȳɂ ȷȻȾȯȱɂʕ ȷɂ ȷɁ ȯ ɀȳȯȺ ȾɀȽȰȺȳȻ ȴȽɀ ȱɀȳȯɂȽɀɁʔȄʡʔ 

306 LEGAL ISSUES IN MASS DIGITIZATION, supra note 145, at 16. 

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considerations that would benefit from further discussion and stakeholder input. Thus, we are 

recommending a limited pilot to garner the necessary experience. 

B. Non-Legislative Solutions 

1. Mass Digitization as Fair Use 

DɃɀȷȼȵ ɂȶȳ OȴȴȷȱȳȂɁ ɀȳɄȷȳɅʕ ɀȳȾɀȳɁȳȼɂȯɂȷɄȳɁ Ƚȴ ȺȷȰɀȯɀȷȳɁ ȯȼȲ Ƚɂȶȳɀ ɃɁȳɀ ȵɀȽɃȾɁ ȱȽȼɂȳȼȲȳȲ 

that mass digitization legislation is unnecessary because courts are capable of evaluating such 

projects on a case-by-case basis under the fair use doctrine.307 Noting the general judicial trend 

ȃɂȽɅȯɀȲ ȯȼ ȳȻȾȶȯɁȷɁ Ƚȼ ɂɀȯȼɁȴȽɀȻȯɂȷɄȳ ȾɃɀȾȽɁȳʕȄ ɂȶȳɁȳ ȱȽȻȻȳȼɂȳɀɁ ȽȰɁȳɀɄȳȲ ɂȶȯɂ ȱȽɃɀɂɁ ȶȯɄȳ 

applied the doctrine to approve digitization projects in a variety of forms.308 That jurisprudence, 

ɂȶȳɇ ȯɀȵɃȳȲʕ ȶȯɁ ȻȯȲȳ ȴȯȷɀ ɃɁȳ ȯ ȃɁɂȯȰȺȳʕ ȾɀȳȲȷȱɂȯȰȺȳʕ ȱȽȶȳɀȳȼɂ ȲȽȱɂɀȷȼȳȄ ɂȶȯɂ ȾɀȽɄȷȲȳɁ ɁɃȰɁɂȯȼɂȷȯȺ 

guidance to users assessing whether a given project would be deemed infringing.309 This 

approach would encourage users to digitize without any involvement from copyright owners, 

and provide further that the works, once digitized, would be made available for a variety of 

purposes to intermediaries, end-users, or the general public. 

The Office is not persuaded that fair use has achieved the predictability and stability that 

these commenters ascribe to it. To be sure, courts have concluded thus far that the mass 

reproduction and limited display uses at issue in the Google Books cases (full-text search, access 

for the print-ȲȷɁȯȰȺȳȲʕ ȯȼȲ ȲȷɁȾȺȯɇ Ƚȴ ȃɁȼȷȾȾȳɂɁȄʡ ȯɀȳ ȾɀȽɂȳȱɂȳȲ Ȱɇ ȴȯȷɀ ɃɁȳʔ310 But while these 

cases are important, and reflect both the evolution of the fair use doctrine and the need to 

reconcile exclusive rights with other public policy priorities, they were decided on the basis of the 

highly fact-specific inquiry prescribed by 17 U.S.C. § 107, and therefore they do not extend to the 

wider dissemination of copyrighted works without permission or compensation. Certainly, none 

307 See, e.g., Tr. at 140:13-20 (Mar. 11, 2014) ʠJȽȼȯɂȶȯȼ BȯȼȲʕ LCAʡ ʠȃʢFʣȯȷɀ ɃɁȳ ȯȺȺȽɅɁ ɂȶȳ ȱȯɁȳ-by-case 

granularity of inspection that is really hard to imagine that any legislation would ever do any better at. 

And so, it seems that it is the perfect solution to this problem, or at least a better solution that [sic] any other 

ɁȽȺɃɂȷȽȼ ɂȶȯɂ ȷɁ ȺȷȹȳȺɇ ɂȽ ȳȻȳɀȵȳʔȄʡʔ 

308 Brandon Butler, Michael Carroll & Peter Jaszi, American Univ. Washington College of Law, Comments 

SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ FȳȰʔ ˼˻ʕ ˽˻˼˿ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˾ ʠMay 21, 2014) 

ʠȃBɃɂȺȳɀ ȳɂ ȯȺʔ AȲȲȷɂȷȽȼȯȺ CȽȻȻȳȼɂɁȄʡʔ 

309 Id. at 1-2. 

310 As noted, as of the date of this Report, the appeal of the decision in Google II is pending before the Second 

Circuit. 

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purported to announce a standard to govern the application of fair use to mass digitization cases 

generally. To the contrary, the Second Circuit in HathiTrust cautioned that its decision should not 

Ȱȳ ɀȳȯȲ ɂȽ ȃȴȽɀȳȱȺȽɁʢȳʣ ȯ ȴɃɂɃɀȳ ȱȺȯȷm based on circumstances not now predictable, and based on a 

Ȳȷȴȴȳɀȳȼɂ ɀȳȱȽɀȲʔȄ311 Thus, as a means of providing a coherent and reliable set of standards to 

govern the broad variety of digitization activities throughout the marketplace, fair use appears illɁɃȷɂȳȲʔ AɁ Ƚȼȳ ɁȱȶȽȺȯɀ ɀȳȱȳȼɂȺɇ ȽȰɁȳɀɄȳȲ ȷȼ ɂȶȷɁ ȱȽȼɂȳɆɂʕ ȃȯȼɇ ɀɃȺȳ ɂȶȯɂ ȾɀȷɄȷȺȳȵȳɁ ȴȺȳɆȷȰȷȺȷɂɇ 

ȼȳȱȳɁɁȯɀȷȺɇ ȾɀȽȲɃȱȳɁ ɃȼȾɀȳȲȷȱɂȯȰȷȺȷɂɇʔ Tȶȳ ȵɀȳȯɂȳɀ ɂȶȳ ȴȽɀȻȳɀʕ ɂȶȳ ȵɀȳȯɂȳɀ ȯȺɁȽ ɂȶȳ ȺȯɂɂȳɀʔȄ312 And 

that unpredictability will slow the development of future mass digitization projects by dissuading 

litigation-averse users from undertaking such activities. 

Nor is the uncertainty in this area necessarily limited to questions of how settled legal 

principles should apply to particular facts. The Seventh Circuit recently questioned the broad 

ȯȾȾȺȷȱȯɂȷȽȼ Ƚȴ ɂȶȳ ȃɂɀȯȼɁȴȽɀȻȯɂȷɄȳ ɃɁȳȄ ɁɂȯȼȲȯɀȲ ɂȶȯɂ ɃȼȲȳɀȺȷȳɁ ȻɃȱȶ Ƚȴ ɂȶȳ ȱȯɁȳ ȺȯɅ Ƚȼ Ʌȶȷȱȶ 

fair use proponents rely. Specifically, the court noted the potential overlap between 

transformative use and the ȯɃɂȶȽɀȂɁ right to prepare or authorize derivative works. The court 

ɀȳȯɁȽȼȳȲ ɂȶȯɂ ȃʢɂʣȽ Ɂȯɇ ɂȶȯɂ ȯ ȼȳɅ ɃɁȳ ɂɀȯȼɁȴȽɀȻɁ ɂȶȳ ɅȽɀȹ ȷɁ ȾɀȳȱȷɁȳȺɇ ɂȽ Ɂȯɇ ɂȶȯɂ ȷɂ ȷɁ ȲȳɀȷɄȯɂȷɄȳ 

ȯȼȲ ɂȶɃɁʕ Ƚȼȳ Ȼȷȵȶɂ ɁɃȾȾȽɁȳʕ ȾɀȽɂȳȱɂȳȲ ɃȼȲȳɀ ʢ˼Ȃ UʔSʔCʔʣ § ˼˻ȁʠ˽ʡʔȄ313 Moreover, even where the 

transformative use standard has been applied in mass digitization cases, its meaning has not been 

entirely free from ambiguity. The district court in HathiTrust held that the use of digital copies to 

facilitate access for print-disabled persons is transformative on the ground that providing such 

ȯȱȱȳɁɁ ȃɅȯɁ ȼȽɂ ɂȶȳ ȷȼɂȳȼȲȳȲ ɃɁȳ Ƚȴ ɂȶȳ ȽɀȷȵȷȼȯȺ ɅȽɀȹʔȄ314 On appeal, the Second Circuit found 

ɂȶȯɂ ȱȽȼȱȺɃɁȷȽȼ ɂȽ Ȱȳ ȯ ȃȻȷɁȯȾȾɀȳȶȳȼɁȷȽȼʕȄ ȳɆȾȺȯȷȼȷȼȵ ɂȶȯɂ ȃʢȯʣȲȲȳȲ ɄȯȺɃȳ Ƚɀ ɃɂȷȺȷɂɇ ȷɁ ȼȽɂ ɂȶȳ 

ɂȳɁɂȄ ȯȼȲ ɂȶȯɂ ȃȳȼȯȰȺʢȷȼȵʣ ȯ Ⱥȯɀȵȳɀ ȯɃȲȷȳȼȱȳ ɂȽ ɀȳȯȲ ʔ ʔ ʔ ɅȽɀȹɁȄ ȷɁ ȼȽɂ ȯ ɂɀȯȼɁȴȽɀȻȯɂȷɄȳ ɃɁȳʔ315 (The 

court nevertheless concluded that the provision of access for the print-disabled was a fair use.) 

Thus, the proposition advanced by the commenters advocating a fair use-based approach – that 

ȱȽɃɀɂɁ ȶȯɄȳ ɁȳɂɂȺȳȲ Ƚȼ ȃȯ ɃȼȷȴȷȳȲ ɄȷȳɅ Ƚȴ ȴȯȷɀ ɃɁȳ ȵɀȽɃȼȲȳȲ ȷȼ ɂȶȳ ȱȽȼȱȳȾɂ Ƚȴ 

ɂɀȯȼɁȴȽɀȻȯɂȷɄȳȼȳɁɁȄ316 – seems premature at this time. 

311 HathiTrust, 755 F.3d at 101. 

312 Ginsburg, Fair Use for Free, supra note 99, at 3. 

313 Kienitz v. Sconnie Nation LLC, 766 F.3d 756, 758 (7th Cir. 2014), cert. denied, 135 S. Ct. 1555 (2015). 

314 HathiTrust, 902 F. Supp. 2d at 461. 

315 HathiTrust, 755 F.3d at 96, 101. 

316 Butler et al. Additional Comments at 1. 

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The Copyright Office believes that reliance on fair use can go only so far in enabling the 

development of mass digitization: in our view, it would exclude uses of copyrighted works that 

more broadly implicate the statutory rights of copyright owners and the balance of the overall 

Copyright Act. For example, the Office noted in 2011 that fair use would Ȱȳ ȃȲȷȴȴȷȱɃȺɂ ɂȽ ɁȿɃare 

ɅȷɂȶȄ ȯ ȻȯɁɁ ȲȷȵȷɂȷɈȯɂȷȽȼ ȾɀȽȸȳȱɂ ȷȼɄȽȺɄȷȼȵ ȃɂȶȳ Ⱥȯɀȵȳ ɁȱȯȺȳ Ɂȱȯȼȼȷȼȵ ȯȼȲ ȲȷɁɁȳȻȷȼȯɂȷȽȼ Ƚȴ ȳȼɂȷɀȳ 

ȰȽȽȹɁʔȄ317 Both the Google and HathiTrust cases strongly support that conclusion. The district 

court in Google ɁɂȯɂȳȲ ɂȶȯɂ ȃGȽȽȵȺȳ ɅȽɃȺȲ ȶȯɄȳ ȼȽ ȱȽȺȽɀȯȰȺȳ defense to a claim of infringement 

based on the unauthorized copying and selling or other exploitation of entire copyrighted 

ȰȽȽȹɁʕȄ318 ȯȼȲ Ⱥȯɂȳɀ ȳȻȾȶȯɁȷɈȳȲ ȷȼ ɁɃȾȾȽɀɂ Ƚȴ ȷɂɁ ȴȯȷɀ ɃɁȳ ȲȳɂȳɀȻȷȼȯɂȷȽȼ ɂȶȯɂ GȽȽȵȺȳȂɁ ȲȷɁȾȺȯɇ Ƚȴ 

ɁȼȷȾȾȳɂɁ ȃȷɁ ȼȽɂ ȯ ɂȽȽȺ ɂȽ Ȱȳ ɃɁȳȲ ɂȽ ɀȳȯȲ ȰȽȽȹɁʔȄ319 The HathiTrust court similarly found it 

ȃʢȷʣȻȾȽɀɂȯȼɂʢʣȄ ɂȶȯɂ ȃɂȶȳ HDL ȲȽȳɁ ȼȽɂ ȯȺȺȽɅ ɃɁȳɀɁ ɂȽ ɄȷȳɅ ȯȼɇ ȾȽɀɂȷȽȼ Ƚȴ ɂȶȳ ȰȽȽȹɁ ɂȶȳɇ ȯɀȳ 

ɁȳȯɀȱȶȷȼȵʕȄ ȰɃɂ ȷȼɁɂȳȯȲ ȃɁȷȻȾȺɇ ȾȳɀȻȷɂɁ ɃɁȳɀɁ ɂȽ ʦɅȽɀȲ ɁȳȯɀȱȶȂ – that is, to locate where specific 

words Ƚɀ ȾȶɀȯɁȳɁ ȯȾȾȳȯɀ ȷȼ ɂȶȳ ȲȷȵȷɂȷɈȳȲ ȰȽȽȹɁʔȄ320 Accordingly, should Congress wish to 

encourage or facilitate mass digitization projects providing substantial access to the expressive 

contents of copyrighted works, it would need to look beyond fair use to a licensing model, either 

voluntary or statutory. 

Some stakeholders respond to these concerns by pointing to the codes of best practices 

described above, which have been developed by user groups to provide guidance on fair use 

questions.321 For the reasons discussed, however, the Office concludes that such documents, 

despite their benefits, may be of limited utility in forecasting whether particular uses – at least 

those not yet addressed by the courts – could give rise to infringement liability.322 Given that they 

typically are developed without the input of copyright owners, these codes cannot reflect an 

317 LEGAL ISSUES IN MASS DIGITIZATION, supra note 145, at 23. 

318 Google I, 770 F. Supp. 2d at 678. 

319 Google II, 954 F. Supp. 2d at 291. 

320 HathiTrust, 755 F.3d at 97. 

321 See, e.g., Butler et al. Additional Comments at 7-8; LCA, Comments Submitted in Response to U.S. 

Copyright OfficȳȂɁ FȳȰʔ ˼˻ʕ ˽˻˼˿ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ Ȃ-˼˼ ʠMȯɇ ˼ȁʕ ˽˻˼˿ʡ ʠȃLCA AȲȲȷɂȷȽȼȯȺ CȽȻȻȳȼɂɁȄʡʗ 

MIT LȷȰɀȯɀȷȳɁʕ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ FȳȰʔ ˼˻ʕ ˽˻˼˿ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ 

˾ ʠɃȼȲȯɂȳȲʡ ʠȃMIT LȷȰɀȯɀȷȳɁ AȲȲȷɂȷȽȼȯȺ CȽȻȻȳȼɂɁȄʡʔ 

322 See Part II.B.1.b, supra. 

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industry-wide consensus as to the lawfulness of the uses they describe, let alone a judicial 

determination.323 

2. Voluntary Agreements 

In the 2011 Discussion Document, the Copyright Office described two voluntary licensing 

models – direct licensing and voluntary collective licensing – and examined the extent to which 

each could provide a market-based framework for mass digitization.324 Direct licensing refers to 

individually negotiated agreements between copyright owners and users, while voluntary 

collective licensing involves rightsholders authorizing one or more third-party organizations to 

negotiate licenses on their behalf. These approaches have the advantage of allowing copyright 

owners to retain control over the use of their works by enabling them to set prices and terms for 

particular types of licenses, and they would not require copyright owners to opt out of a statutory 

scheme like extended collective licensing. Both types have the capacity to offer large or small 

options to users, including, for example, the micro-licenses that are so critical to the digital 

economy. 

The Copyright Office agrees there are viable markets for the licensing of some copyrighted 

works for digitization and display purposes. In October 2012, for example, Google and the 

publisher plaintiffs in the Google Books litigation entered into a settlement agreement under 

which publishers can choose to allow Google to digitize their copyrighted out-of-print books in 

exchange for receiving a digital copy for their own use.325 Google is permitted to display twenty 

percent of each digitized book online in response to user searches. Users can purchase a complete 

copy from the Google Play store, and revenue is shared by Google and the publishers.326 

SȷȻȷȺȯɀȺɇʕ ɃȼȲȳɀ AȻȯɈȽȼȂɁ LȽȽȹ IȼɁȷȲȳ ɂȶȳ BȽȽȹ ȾɀȽȵɀȯȻʕ ȾɃȰȺȷɁȶȳɀɁ ȱȯȼ ɁɃȰȻȷɂ ȲȷȵȷɂȯȺ ȱȽȾȷȳɁ Ƚȴ 

books to be offered for sale and choose the percentage of each book (within a range of ten to 

eighty percent) that will be visible to users prior to purchase.327 Arrangements like these suggest 

323 See, e.g., FAIR USE FOR ACADEMIC AND RESEARCH LIBRARIES, supra ȼȽɂȳ ˽˻˽ʕ ȯɂ ˾ ʠȃTȶȷɁ ȱȽȲȳ Ƚȴ ȰȳɁɂ 

practices was not negotiated with rights holders. . . . It presents a clear and conscientious articulation of the 

values of [the library] community, not a compromise between those values and the competing interests of 

Ƚɂȶȳɀ ȾȯɀɂȷȳɁʔȄʡʔ 

324 LEGAL ISSUES IN MASS DIGITIZATION, supra note 145, at 30-34. 

325 See Miller, supra note 45. 

326 Id. 

327 See Look Inside the Book (LITB) Program, AMAZON.COM, 

https://ɅɅɅʔȯȻȯɈȽȼʔȱȽȻ/ȵȾ/ȴȳȯɂɃɀȳʔȶɂȻȺʚȲȽȱIȲɢ˼˻˻˼˼˼ȄȄȂ˼ ʠȴȽȺȺȽɅ Ⱥȷȼȹ ɂȽ ȃPɀȷȼɂ ȰȽȽȹ FAQɁȄʡʔ 

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that the market is developing ways to fill the gap between mass digitization activities protected 

by fair use and those requiring a licensing solution. 

A question, then, is whether the federal government might play a role in aiding the 

development of more private ȯȵɀȳȳȻȳȼɂɁʔ Tȶȳ EɃɀȽȾȳȯȼ CȽȻȻȷɁɁȷȽȼȂɁ ȷȼɄȽȺɄȳȻȳȼɂ ȷȼ ɂȶȳ 

negotiation of the multistakeholder MOU noted above could provide an example of such an 

effort. The MOU is the product of a dialogue among representatives of copyright owners, 

libraries, and collecting societies to facilitate the digitization of out-of-commerce books and 

journals by libraries and similar institutions in Europe.328 It sets out several principles intended to 

ȃȳȼȱȽɃɀȯȵȳ ȯȼȲ ɃȼȲȳɀȾȷȼ ɄȽȺɃȼɂȯɀɇ ȺȷȱȳȼɁȷȼȵ ȯȵɀȳȳȻȳȼɂɁ ɂȽ ȯȺȺȽɅ ȱɃȺɂɃɀȯȺ ȷȼɁɂȷɂɃɂȷȽȼɁ ɂȽ ȲȷȵȷɂȷɁȳ 

ȯȼȲ Ȼȯȹȳ ȯɄȯȷȺȯȰȺȳ ȽȼȺȷȼȳ ɂȶȳɁȳ ɂɇȾȳ Ƚȴ ɅȽɀȹɁ ɅȶȷȺȳ ȴɃȺȺɇ ɀȳɁȾȳȱɂȷȼȵ ȱȽȾɇɀȷȵȶɂʔȄ329 Congress 

could direct the Copyright Office to coordinate the development of a similar set of consensus 

principles among U.S. stakeholders. Such a document could encourage the growth of licensed 

mass digitization projects by establishing an industry-wide framework for the negotiation of 

voluntary agreements for that purpose. 

There are, however, inherent limitations to any purely voluntary model as a means of 

effectuating large-scale digitization projects. The need to identify, locate, and negotiate 

individual licenses with a multitude of rightsholders may render a direct licensing solution costprohibitive for many potential users. Such costs would be compounded in situations where 

ownership of the relevant digital rights is uncertain or disputed – as in the case of works created 

before such formats were contemplated.330 A voluntary collective licensing model would 

eliminate many of these transaction costs, but its opt-in nature may prevent collective 

organizations from being able to license all of the works or uses desired for mass digitization 

projects. In other words, they cannot provide licenses or permissions for works they do not 

represent. 

AɁ ɂȶȳ CȽȾɇɀȷȵȶɂ Oȴȴȷȱȳ ȼȽɂȳȲ ȷȼ ˽˻˼˼ʕ ȃʢȻʣȳȻȰȳɀɁȶȷȾ ȷȼ ɂȶȳɁȳ ȱȽȺȺȳȱɂȷɄȳ ȽɀȵȯȼȷɈȯɂȷȽȼɁ ȷɁ 

purely voluntary and no one organization may be able to license the exhaustive repertoire that 

ɅȽɃȺȲ Ȱȳ ȼȳȳȲȳȲ ɂȽ ȯȺȺȽɅ ȻȯɁɁ ȲȷȵȷɂȷɈȯɂȷȽȼ Ƚȴ Ⱥȷɂȳɀȯɀɇ ɅȽɀȹɁʔȄ 331 Orphan works, moreover, 

328 See Out-of-Commerce Works, EUROPEAN COMMISSION (Oct. 10, 2014), 

http://ec.europa.eu/internal_market/copyright/out-of-commerce/index_en.htm. 

329 Id. 

330 See LEGAL ISSUES IN MASS DIGITIZATION, supra note 145, at 31 & n.73. 

331 Id. at 34. 

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would necessarily be excluded from such a system other than in perhaps limited circumstances 

when an organization has received prior authority to represent an author or copyright owner 

who then goes missing. (In this case, the organization has the legal authority to license the work.) 

While the 2009 Google Books settlement was a privately negotiated agreement that would have 

covered orphan works, the parties believed it could do so because, as a class action settlement, it 

would have bound non-parties to the litigation.332 AȼȲ ȯɁ ɂȶȳ ȲȷɁɂɀȷȱɂ ȱȽɃɀɂȂɁ ɀȳȸȳȱɂȷȽȼ Ƚȴ ɂȶȳ 

settlement indicates, the class action procedure cannot provide a comprehensive framework for 

the mass licensing of orphan works. Indeed, the court rejected the settlement largely on the basis 

Ƚȴ ȷɂɁ ȲȳɂȳɀȻȷȼȯɂȷȽȼ ɂȶȯɂ ɂȶȳ ɂɀȳȯɂȻȳȼɂ Ƚȴ ȽɀȾȶȯȼ ɅȽɀȹɁ ȷɁ ȯ ȾȽȺȷȱɇ Ȼȯɂɂȳɀ ȃȻȽɀȳ ȯȾȾɀȽȾɀȷȯɂȳȺɇ 

decided by Congress than through an agreement among private, self-ȷȼɂȳɀȳɁɂȳȲ ȾȯɀɂȷȳɁʔȄ333 

At the same time, tȶȳ EɃɀȽȾȳȯȼ CȽȻȻȷɁɁȷȽȼȂɁ MOU ɃȼȲȳɀɁȱȽɀȳɁ ɂȶȳ ȱȶȯȺȺȳȼȵȳ Ƚȴ ɀȳȺɇȷȼȵ 

on a strictly voluntary approach. To enable the digitization of works outside a CMO repertory, 

the MOU seeks to establish the following presumption: 

For the purpose of . . . [a digitization] Agreement, where a rightholder whose work 

was first published in a particular Member State has not transferred the 

management of his rights to a collective management organisation, the collective 

management organisation which manages rights of the same category in that 

Member State of first publication shall be presumed to manage the rights in respect 

of such work.334 

The MOU thus attempts to establish a principle of extended collective licensing – the application 

of negotiated licensing terms to all members of a class of rightsholders – through a voluntary 

agreement among representative organizations. It is not clear, however, that this presumption 

would have any legal effect against a non-CMO member who later brought an infringement claim 

for the unauthorized use of his or her copyrighted work in a mass digitization project. That 

party, after all, is not a signatory to the MOU and never authorized a CMO to act on his or her 

behalf. Indeed, the MOU ackȼȽɅȺȳȲȵȳɁ ɂȶȯɂ ȃȺȳȵȷɁȺȯɂȷȽȼ Ȼȷȵȶɂ Ȱȳ ɀȳȿɃȷɀȳȲȄ ɂȽ ȾɀȽɄȷȲȳ ȃȺȳȵȯȺ 

332 See FED. R. CIV. P. 23(e). 

333 Google I, 770 F. Supp. 2d at 677. 

334 MOU on Out-of-Commerce Works, supra note 82, at 3. A CMO can benefit from this presumption only if 

ȷɂ ȻȯȹȳɁ ȷɂɁ ȃȰȳɁɂ ȳȴȴȽɀɂɁ ɂȽ ȯȺȳɀɂ ɀȷȵȶɂȶȽȺȲȳɀɁ ȷȼ ȿɃȳɁɂȷȽȼȄ ȷȼ ȯȱȱȽɀȲȯȼȱȳ Ʌȷɂȶ ȻȳɂȶȽȲɁ ȯȵɀȳȳȲ ɃȾȽȼ Ʌȷɂȶ 

rightsholder organizations in the country where the CMO is based. Id. 

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certainty when, under an applicable presumption, the collective management organisations 

ɀȳȾɀȳɁȳȼɂ ɀȷȵȶɂȶȽȺȲȳɀɁ ɂȶȯɂ ȶȯɄȳ ȼȽɂ ɂɀȯȼɁȴȳɀɀȳȲ ɂȶȳ ȻȯȼȯȵȳȻȳȼɂ Ƚȴ ɂȶȳȷɀ ɀȷȵȶɂɁ ɂȽ ɂȶȳȻʔȄ335 

As that language suggests, voluntary stakeholder agreements by themselves cannot 

entirely insulate mass digitization users from infringement claims by nonparty copyright owners. 

Therefore, notwithstanding the appeal of a pure market-based approach, a strictly voluntary 

model may not create the legal certainty necessary to enable the full range of mass digitization 

activities that Congress considers in the public interest. 

C. Extended Collective Licensing 

Extended collective licensing is a scheme that is somewhere between voluntary licensing 

ȯȼȲ ȱȽȻȾɃȺɁȽɀɇ ȺȷȱȳȼɁȷȼȵʔ AɁ ȲȷɁȱɃɁɁȳȲ ȯȰȽɄȳʕ ȷȼ ȯȼ ECL ɁɇɁɂȳȻ ɂȶȳ ȵȽɄȳɀȼȻȳȼɂ ȃȯɃɂȶȽɀȷɈȳɁ ȯ 

collective organization to negotiate licenses for a particular class of works (e.g., textbooks, 

newspapers, and magazines) or a particular class of uses (e.g., reproduction of published works 

ȴȽɀ ȳȲɃȱȯɂȷȽȼȯȺ Ƚɀ Ɂȱȷȳȼɂȷȴȷȱ ȾɃɀȾȽɁȳɁʡȄ Ʌȷɂȶ ȾɀȽɁȾȳȱɂȷɄȳ ɃɁȳɀɁʔ336 By operation of law, the terms 

of such licenses are automatically extended to, and made binding upon, all members of the 

relevant class of rightsholders – including those who do not belong to the collective organization 

– unless they affirmatively opt out. ECL differs from compulsory licensing in that private entities, 

rather than the government, establish royalty rates and terms of use. Iȼ ɂȶȯɂ ɀȳɁȾȳȱɂʕ ECL ȃȷɁ 

thought to be beneficial because it preserves the freedom to contract more so than alternative 

ȱȽȻȾɃȺɁȽɀɇ ȺȷȱȳȼɁȳ ɁȱȶȳȻȳɁʔȄ337 

In 2011, the Office noted that ECL regimes had been in place in Nordic countries for 

several decades, but generally had not been adopted in countries whose national languages are in 

wide use internationally.338 The Office further observed that ECL typically had been applied only 

ɂȽ ȃȺȷȻȷɂȳȲ ɂɇȾȳɁ Ƚȴ ɅȽɀȹɁ ȯȼȲ ɃɁȳɁʕ ɁɃȱȶ ȯɁ ɂȶȳ ɃɁȳ Ƚȴ ȾɃȰȺȷɁȶȳȲ ɅȽɀȹɁ ȴȽɀ ȳȲɃȱȯtional and 

Ɂȱȷȳȼɂȷȴȷȱ ȾɃɀȾȽɁȳɁʕ Ƚɀ ɂȶȳ ɀȳȾɀȽȲɃȱɂȷȽȼ Ƚȴ ɅȽɀȹɁ Ʌȷɂȶȷȼ ȯȼ ȽɀȵȯȼȷɈȯɂȷȽȼ ɁȽȺȳȺɇ ȴȽɀ ȷȼɂȳɀȼȯȺ ɃɁȳʔȄ339 

ȃAȾȾȺɇȷȼȵ ʢECLʣ ɂȽ ȯ ȻȯɁɁ ȲȷȵȷɂȷɈȯɂȷȽȼ ȾɀȽȸȳȱɂ ɂȶȯɂ ȾɀȽɄȷȲȳɁ ȯȱȱȳɁɁ ɂȽ ȯ ɅȷȲȳ ɀȯȼȵȳ Ƚȴ ɅȽɀȹɁʕȄ Ʌȳ 

335 Id. at 1. 

336 LEGAL ISSUES IN MASS DIGITIZATION, supra note 145, at 35. 

337 Hansen, Orphan Works: Mapping the Possible Solution Spaces, supra note 10, at 17. 

338 See LEGAL ISSUES IN MASS DIGITIZATION, supra note 145, at 34 n.7. 

339 Id. at 36. 

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ȲȳɂȳɀȻȷȼȳȲʕ ȃɅȽɃȺȲ Ȱȳ ȯ ȲɀȯȻȯɂȷȱ ȳɆɂȳȼɁȷȽȼ Ƚȴ ɂȶȳ ȱȽȼȱȳȾɂʔȄ340 The Office therefore 

recommended that any analysis of a possible ECL framework in the United States include careful 

ȱȽȼɁȷȲȳɀȯɂȷȽȼ Ƚȴʕ ȯȻȽȼȵ Ƚɂȶȳɀ ȷɁɁɃȳɁʕ ECLȂɁ ɀȳȺȯɂȷȽȼɁȶȷȾ ɂȽ Ƚɂȶȳɀ ȯɄȯȷȺȯȰȺȳ ȺȷȱȳȼɁȷȼȵ ȻȽȲȳȺɁʕ ɂȶȳ 

interplay between ECL and the existing exceptions for fair use and libraries under Sections 107 

and 108, respectively, and the effect, if any, of an ECL regime on U.S. international treaty 

obligations.341 

Since that time, three key U.S. trading partners – France, Germany, and the United 

Kingdom – have adopted versions of ECL to allow for digitization of copyrighted works for 

certain purposes.342 Those laws indicate a growing international acceptance of ECL as a means of 

addressing issues of mass digitization, and they could provide a model for such legislation in the 

United States.343 Although the United States does not have this long tradition of ECL, and some 

stakeholders have expressed skepticism, we believe it is the best answer to solving the mass 

licensing that is inherent to mass digitization. The parties to the Google Books settlement were 

able to achieve consensus with an analogous model, and we believe that with government 

support and oversight to ensure that any legislation is developed transparently and in a way to 

benefit a wide array of stakeholders equally, ECL can be successful here. 

The Office accordingly recommends that, to garner experience with ECL in the United 

States, Congress strongly consider the adoption of a limited ȃȾȷȺȽɂ ȾɀȽȵɀȯȻȄ ɂȶȯɂ ɅȽɃȺȲ ȳȼȯȰȺȳ 

ECL for certain mass digitization projects serving nonprofit educational and research purposes. 

One critical component of this recommendation is that copyright owners would have the right to 

opt out of the licensing regime at all times, and the legislation would require clear and 

streamlined procedures for doing so. As is true under existing collective licensing systems in the 

United States (e.g., the licensing of musical public performance rights by ASCAP, BMI, and 

SESAC), the negotiation and administration of licenses would be handled by CMOs acting on 

behalf of copyright owners in a particular category of works. Under an ECL framework, CMOs 

would be permitted (but not required) to apply to the Copyright Office for authorization to 

340 Id. 

341 Id. at 37. 

342 See supra Part I.C.4-6. 

343 Congress may wish to look in particular to the ongoing implementation of the U.K. ECL regulations, 

which took effect in October 2014. As indicated below, our proposed ECL framework is based in part on 

the U.K. model, and therefore the U.K. experience over the ensuing months should provide useful guidance 

on how such a system might operate in practice. 

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negotiate extended collective licenses on behalf of both members and non-members of the 

organizations for certain mass digitization uses. Among other provisions, the legislation would 

define the types of works and uses available for licensing, establish eligibility and oversight 

requirements for participating CMOs, and provide for the timely distribution of royalties to 

rightsholders. 

The following sections set forth the general elements that the Office believes the ECL pilot 

should include. We have not, however, provided a formal legislative proposal. As stated above, 

because the success of an ECL system depends on the voluntary participation of stakeholders, the 

Office believes that specific legislative provisions should be developed through a public process 

involving input from interested parties. To that end, the Office is issuing a Notice of Inquiry 

requesting public comment on several questions concerning the scope and administration of the 

program. From there, the Office will present an appropriate legislative proposal to Congress. 

1. Types of Works and Publication Status 

Given the lack of precedent for ECL in the United States and its relatively circumscribed 

application elsewhere, any such program would need to be limited at the outset to specific 

categories of works. For the reasons discussed below, we would say, in general, that ECL makes 

the most sense for the following works: (1) literary works; (2) pictorial or graphic works 

published as illustrations, diagrams, or similar adjuncts to literary works; and (3) photographs. 

Whether an ECL framework should include further limitations within these categories – such as, 

for example, excluding works published after a certain date or works that are commercially 

available – requires significantly more public discussion and will be examined through the 

OȴȴȷȱȳȂɁ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯȼȲ ȾɃȰȺȷȱ ȱȽȻȻȳȼɂ ȾɀȽȱȳɁɁ. 

The Office does not advise covering unpublished works in the ECL framework for a 

number of reasons.344 First, the administrative costs associated with managing such a vast 

universe of rights would likely outweigh any benefit a CMO could realize from doing so under an 

ECL scheme.345 The burdens would be compounded by the virtual impossibility of determining 

344 See ˼Ȃ UʔSʔCʔ § ˼˻˼ ʠȃʦPɃȰȺȷȱȯɂȷȽȼȂ ȷɁ ɂȶȳ ȲȷɁɂɀȷȰɃɂȷȽȼ Ƚȴ ȱȽȾȷȳɁ Ƚɀ ȾȶȽȼȽɀȳȱȽɀȲɁ Ƚȴ ȯ ɅȽɀȹ ɂȽ ɂȶȳ ȾɃȰȺȷȱ Ȱɇ 

sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or 

phonorecords to a group of persons for purposes of further distribution, public performance, or public 

ȲȷɁȾȺȯɇʕ ȱȽȼɁɂȷɂɃɂȳɁ ȾɃȰȺȷȱȯɂȷȽȼʔȄʡʔ 

345 See Tr. at 270:13-˼ȃ ʠMȯɀʔ ˼˼ʕ ˽˻˼˿ʡ ʠJȯȼȷȱȳ Tʔ PȷȺȱȶʕ RɃɂȵȳɀɁ UȼȷɄʔ LȷȰɀȯɀȷȳɁʡ ʠȃ[I]f an extended collective 

licensing regime extended to all photographs ever made by any citizen, any person, any picture ever taken, 

ȯȼɇ Ⱥȳɂɂȳɀ ȳɄȳɀ Ʌɀȷɂɂȳȼʕ ɂȶȳȼ ɇȽɃ ȱȯȼȂɂ ȲȽ ɂȶȯɂʔ AȼȲ Ʌȶȯɂ CMO ɅȽɃȺȲ ɂȯȹȳ ȱȯɀȳ Ƚȴ ɂȶȯɂʚȄʡʔ 

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reasonable licensing fees for the use of works for which there has never been a commercial 

market. Furthermore, applying ECL to unpublished works would be difficult to reconcile with 

the right of first publication, Ʌȶȷȱȶ ɀȳȱȽȵȼȷɈȳɁ ɂȶȯɂ ɂȶȳ ȃɂȶɀȳɁȶȽȺȲ ȲȳȱȷɁȷȽȼ ʔ ʔ ʔ Ʌȶȳɂȶȳɀ ȯȼȲ ȷȼ 

what form tȽ ɀȳȺȳȯɁȳ ʢȯʣ ɅȽɀȹʕȄ ȵȳȼȳɀȯȺȺɇ ȰȳȺȽȼȵɁ ɂȽ ɂȶȳ ȯɃɂȶȽɀʔ346 Unsurprisingly, therefore, no 

ECL system of which we are aware provides for the licensing of unpublished works.347 

a. Literary Works 

A number of commenters proposed literary works as an appropriate starting point for an 

ECL system.348 BȽȽȹɁ ȯɀȳ ȃɂȶȳ ȱȳȼɂȳɀȾȷȳȱȳ Ƚȴ Ȼȯȼɇ ȱɃȺɂɃɀȯȺ ȱȽȺȺȳȱɂȷȽȼɁȄ ȯȼȲ ȯɁ ɁɃȱȶ ȯɀȳ ȃɀȳȺȳɄȯȼɂ 

to many – perhaps the majority of – large-ɁȱȯȺȳ Ɂȱȯȼȼȷȼȵ ȷȼȷɂȷȯɂȷɄȳɁʔȄ349 Moreover, the proposed 

class action settlement in the Google Books litigation provides a template for an ECL system in 

ɂȶȷɁ ȱȽȼɂȳɆɂʔ ȃAȾȾɀȽɄȯȺ Ƚȴ ɂȶȳ ʔ ʔ ʔ ɁȳɂɂȺȳȻȳȼɂ ɅȽɃȺȲʕ ȷȼ ȳȴȴȳȱɂʕ ȶȯɄȳ ȱɀȳȯɂȳȲ ȯȼ ȳɆɂȳȼȲȳȲ ȱȽȺȺȳȱɂȷɄȳ 

ȺȷȱȳȼɁȳȄ Ȱɇ ȵȷɄȷȼȵ GȽȽȵȺȳ ɂȶȳ ɀȷȵȶɂ ɂȽ Ɂȱȯȼ ȯȼȲ Ȼȯȹȳ ɁȾȳȱȷȴȷȳȲ ɃɁȳɁ Ƚȴ ȲȷȵȷɂȯȺ ȱȽȾȷȳɁ Ƚȴ ȰȽȽȹɁ 

without the prior authorization of copyright owners, unless they opted out.350 A centralized Book 

346 Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 553 (1985). Although first publication is not 

expressly listed among the exclusive rights of 17 U.S.C. § 106, the principle that an author generally is 

ȳȼɂȷɂȺȳȲ ɂȽ ȱȽȼɂɀȽȺ ȶȷɁ Ƚɀ ȶȳɀ ɅȽɀȹȂɁ ȴȷɀɁɂ ȾɃȰȺȷȱȯɂȷȽȼ ȷɁ ɀȳȴȺȳȱɂȳȲ ȷȼ ɁȳɄȳɀȯȺ ȾɀȽɄȷɁȷȽȼɁ Ƚȴ ɂȶȳ CȽȾɇɀȷȵȶɂ Aȱɂʕ 

including the Section 108 library exceptions and the Section 115 statutory license for making and 

distributing phonorecords of nondramatic musical works. See 17 U.S.C. § 108(b) (permitting reproduction 

and distribution of unpublished works in a collectioȼ ȃɁȽȺȳȺɇ ȴȽɀ ȾɃɀȾȽɁȳɁ Ƚȴ ȾɀȳɁȳɀɄȯɂȷȽȼ ȯȼȲ ɁȳȱɃɀȷɂɇ Ƚɀ 

ȴȽɀ ȲȳȾȽɁȷɂ ȴȽɀ ɀȳɁȳȯɀȱȶ ɃɁȳ ȷȼ ȯȼȽɂȶȳɀ ȺȷȰɀȯɀɇ Ƚɀ ȯɀȱȶȷɄȳɁȄʡʗ id. § 115(a)(1) (compulsory license only 

ȯɄȯȷȺȯȰȺȳ ȃʢɅʣȶȳȼ ȾȶȽȼȽɀȳȱȽɀȲɁ Ƚȴ ȯ ȼȽȼȲɀȯȻȯɂȷȱ ȻɃɁȷȱȯȺ ɅȽɀȹ ȶȯɄȳ Ȱȳȳȼ ȲȷɁɂɀȷȰɃɂȳȲ ɂȽ ɂȶȳ ȾɃȰȺȷȱ in the 

UȼȷɂȳȲ SɂȯɂȳɁ ɃȼȲȳɀ ɂȶȳ ȯɃɂȶȽɀȷɂɇ Ƚȴ ɂȶȳ ȱȽȾɇɀȷȵȶɂ ȽɅȼȳɀȄʡʔ First publication principles are also 

incorporated in the Berne Convention. See Berne Convention, supra note 16. Berne Article 10 allows the fair 

quotation of a copyrighted work, but onlɇ ȷȴ ȷɂ ȃȶȯɁ ȯȺɀȳȯȲɇ Ȱȳȳȼ ȺȯɅȴɃȺȺɇ ȻȯȲȳ ȯɄȯȷȺȯȰȺȳ ɂȽ ɂȶȳ ȾɃȰȺȷȱʕȄ 

and the uses permitted by Article 10bis ȯȾȾȺɇ ȽȼȺɇ ɂȽ ȃȯɀɂȷȱȺȳɁ ȾɃȰȺȷɁȶȳȲ ȷȼ ȼȳɅɁȾȯȾȳɀɁ Ƚɀ ȾȳɀȷȽȲȷȱȯȺɁ ʔ ʔ ʔ 

ȯȼȲ ʔ ʔ ʔ ȰɀȽȯȲȱȯɁɂ ɅȽɀȹɁʔȄ 

347 See Tr. at 271:1-4 (Mar. 11, 2014) (Jerker Rydén, NatȂl Library of Sweden) (foreign ECL regimes do not 

ȷȼȱȺɃȲȳ ɃȼȾɃȰȺȷɁȶȳȲ ɅȽɀȹɁ ȰȳȱȯɃɁȳ ȃʢȷʣɂ ȷɁ ɂȶȳ ȾɀȳɀȽȵȯɂȷɄȳ Ƚȴ ɂȶȳ ȯɃɂȶȽɀ ɂȽ Ȼȯȹȳ ʢȯ ɅȽɀȹʣ ȯɄȯȷȺȯȰȺȳ ɂȽ ɂȶȳ 

ȾɃȰȺȷȱʔ Tȶȯɂ ȷɁ ȶȷɁ Ƚɀ ȶȳɀ ȲȳȱȷɁȷȽȼʔȄʡʔ 

348 See Authors Guild Additional Comments at 9-10; Centȳɀ ȴȽɀ DȳȻȽȱɀȯȱɇ ʒ TȳȱȶȼȽȺȽȵɇ ʠȃCDTȄʡʕ 

CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ FȳȰʔ ˼˻ʕ ˽˻˼˿ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˾-4 (May 16, 

˽˻˼˿ʡ ʠȃCDT AȲȲȷɂȷȽȼȯȺ CȽȻȻȳȼɂɁȄʡʔ 

349 CDT Additional Comments at 3. 

350 Samuelson, supra note 36, at 519 n.192 (2011); see Google I, 770 F. Supp. 2d at 671-72 (describing terms of 

the settlement). 

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Rights Registry would have collected and distributed royalties to rightsholders, regardless of 

whether they had authorized the Registry to act on their behalf.351 

The Authors Guild has urged that any ECL legislation be further limited to out-ofcommerce literary works to avoid interfering with existing digital licensing markets for incommerce books.352 It is true that the need for an ECL framework is arguably greater in the case 

of out-of-commerce books given the particular market obstacles to the dissemination of such 

ɅȽɀȹɁʔ AɁ Ƚȼȳ ȱȽȻȻȳȼɂȳɀ ȼȽɂȳȲʕ ȃɂȶȳ ɀȳ-ɁȯȺȳ Ƚȴ ȱȽȻȻȳɀȱȷȯȺȺɇ ɃȼȯɄȯȷȺȯȰȺȳ ɅȽɀȹɁȄ ȷɁ ȯ ɁȽȱȷȯȺȺɇ 

ɄȯȺɃȯȰȺȳ ȯȱɂȷɄȷɂɇ ɂȶȯɂ ȃȻȯɇ ʔ ʔ ʔ Ȱȳ ɅȽɀɂȶ ȾȳɀȻȷɂɂȷȼȵʕȄ ȰɃɂ ȷɂ ȷɁ ȃɄȳɀɇ ȺȷȹȳȺɇ ȼȽɂ ȯ ȴȯȷɀ ɃɁȳ ȯȼȲ ʢȷɁʣ 

ȶȯɀȲ ɂȽ ȺȷȱȳȼɁȳ ȷȼȲȷɄȷȲɃȯȺȺɇ Ɂȷȼȱȳ ɀȷȵȶɂȶȽȺȲȳɀɁ ȶȯɄȳ ȱȳȯɁȳȲ ȱȽȻȻȳɀȱȷȯȺ ȳɆȾȺȽȷɂȯɂȷȽȼʔȄ353 

CȽȼɁȳȿɃȳȼɂȺɇʕ ȃɂȶȳɀȳ ȷɁ ȱɃɀɀȳȼɂȺɇ ȼȽ ɅȷȲȳɁȾɀȳȯȲ ȻȯɀȹȳɂȾȺȯȱȳ ɁȽȺɃɂȷȽȼ ȴȽɀ ȴȯȱȷȺȷɂȯɂȷȼȵ ȲȷȵȷɂȯȺ 

access to out-of-Ⱦɀȷȼɂ ȰȽȽȹɁȄ – an important difference between that category of works and those 

that are commercially available.354 On the other hand, limiting ECL to out-of-commerce books 

could diminish the research and educational value of the digital resources that the system is 

intended ɂȽ Ȼȯȹȳ ȾȽɁɁȷȰȺȳʔ MȽɀȳȽɄȳɀʕ ɁɃȱȶ ȯ ȺȷȻȷɂȯɂȷȽȼ ȱȽɃȺȲ ȶȯȻȾȳɀ ɂȶȳ ɁɇɁɂȳȻȂɁ ȳȴȴȷȱȷȳȼȱɇ 

goals in that it would require either the user or the CMO to determine the commercial status of 

every work in a collection and to exclude those that are commercially available. 

There are a number of ways in which Congress could attempt to balance these concerns. It 

could make both in- and out-of-commerce works eligible for ECL, but place greater limits on the 

uses that could be made of the former. For example, the legislation could permit authorized 

CMOs to issue licenses for full digital access to out-of-commerce works, while allowing them to 

license only narrow uses of in-commerce works, such as full-text search and the display of short 

text excerpts in response to user queries.355 The proposed Google Books settlement adopted this 

351 See Google I, 770 F. Supp. 2d at 671-72. 

352 See Preservation and Reuse of Copyrighted Works, supra note 2, at 56, 74-75 (statement of Jan Constantine, 

General Counsel, Authors Guild, Inc.); Authors Guild Additional Comments at 9-10. 

353 CDT Additional Comments at 3. 

354 Id. at 4. 

355 We recognize that there are existing markets in which publishers directly license their works for text and 

data mining, including at least one centralized platform enabling users to obtain permissions and access 

works from multiple publishers. See CrossRef Text and Data Mining, CROSSREF.ORG, 

http://www.crossref.org/tdm/index.html. We do not believe, however, that our proposed ECL program 

would materially interfere with these markets. As discussed below, a CMO could obtain ECL authorization 

only if it demonstrated significant representation among the relevant class of rightsholders and the consent 

of its membership to its proposed licensing plan. These safeguards should ensure that the royalty rates and 

terms offered by a CMO for text and data mining do not undercut those offered by member publishers in 

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distinction. It would have allowed Google to publicly display out-of-print books in various ways, 

ɅȶȷȺȳ ȾȳɀȻȷɂɂȷȼȵ ȽȼȺɇ ȃȼȽȼ-ȲȷɁȾȺȯɇȄ ɃɁȳɁ Ƚȴ ȷȼ-print books.356 Alternatively, Congress could limit 

the class of eligible works to those published before a certain date on the theory that older works 

as a group are less likely to have viable digital licensing markets. This would have the advantage 

of avoiding the need to resolve questions about workɁȂ ȱȽȻȻȳɀȱȷȯȺ ȯɄȯȷȺȯȰȷȺȷɂɇʕ ɂȶȽɃȵȶ ȷɂ ɅȽɃȺȲ 

likely sweep in a significant number of works for which digital markets do exist. The Office is 

interested in receiving stakeholder views on whether these or other approaches could provide a 

workable framework for the treatment of commercially available works under ECL, or whether 

such works should be excluded altogether. 

b. Embedded Pictorial or Graphic Works 

The Office also recommends that the ECL legislation extend to pictorial or graphic works 

published as illustrations, diagrams, or similar adjuncts to literary works.357 Were such works not 

covered, the CMO or licensee would be required to identify every instance in which the copyright 

in an illustration is held by someone other than the owner of the work in which it appears and, 

unless those images could be separately licensed, to exclude them from the digital collection. 

That scenario, we believe, would undermine much of the efficiency served by an ECL system. 

Moreover, applying ECL to these works could help to eliminate obstacles to the 

ȱȽȻȾȳȼɁȯɂȷȽȼ Ƚȴ ɄȷɁɃȯȺ ȯɀɂȷɁɂɁ ȴȽɀ ȃɁȳȱȽȼȲȯɀɇ ɃɁȳɁȄ Ƚȴ ȷȺȺɃɁɂɀȯɂȷȽȼɁ ȾɃȰȺȷɁȶȳȲ ȷȼ ȰȽȽȹɁ ȯȼȲ 

periodicals.358 Oȼȳ ȷȺȺɃɁɂɀȯɂȽɀɁȂ ȯɁɁȽȱȷȯɂȷȽȼ ȯɀȵɃȳȲ ɂȶȯɂʕ ɃȼȲȳɀ ȱɃɀɀȳȼɂ ȺȯɅʕ ɁɃȱȶ ɃɁȳɁ Ƚȴɂȳȼ 

the direct market. Moreover, our understanding is that publishers often offer value-added products and 

services in connection with text and data mining licenses, and they would remain free to do so under an 

ECL system. See Researcher FAQ, CROSSREF.ORG, http://tdmsupport.crossref.org/researcher-faq/ (stating that 

a copyright exception for text and data mining would not obviate the need for a common licensing platform 

ȰȳȱȯɃɁȳ ȃʢɀʣȳɁȳȯɀȱȶȳɀɁ ʢɅȽɃȺȲʣ ɁɂȷȺȺ Ȱȳȼȳȴȷɂ ȴɀȽȻ Ȱȳȷȼȵ ȯȰȺȳ ɂȽ ȲȽɅȼȺȽȯȲ ȱȽȼɂȳȼɂ ȴɀȽȻ Ȳȷȴȴȳɀȳȼɂ ȾɃȰȺȷɁȶȳɀɁ 

without having to resort to different publisher-specific APIs or screen-scrȯȾȷȼȵ ȾɃȰȺȷɁȶȳɀ ɁȷɂȳɁȄʡʔ FȷȼȯȺȺɇʕ 

any publisher concluding that ECL would interfere with its existing or potential markets would be entitled 

to opt out any or all of its works. 

356 Google Books Am. Settlement, supra note 34, §§ 1.31, 1.52, 1.94, 3.2(b), 3.3, 3.4. 

357 Cf. ˼Ȃ UʔSʔCʔ § ˼˻ȃʠȷʡ ʠȳɆȱȳȾɂȷȽȼɁ ȴȽɀ ȺȷȰɀȯɀȷȳɁ ȯȼȲ ȯɀȱȶȷɄȳɁ ȯȾȾȺɇ ɂȽ ȃȾȷȱɂȽɀȷȯȺ Ƚɀ ȵɀȯȾȶȷȱ ɅȽɀȹɁ ȾɃȰȺȷɁȶȳȲ 

as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in 

accordance with subsections (d) ȯȼȲ ʠȳʡȄʡʔ 

358 See AMIʕ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ FȳȰʔ ˼˻ʕ ˽˻˼˿ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ 

11-˼˽ ʠMȯɇ ˽˻ʕ ˽˻˼˿ʡ ʠȃAMI AȲȲȷɂȷȽȼȯȺ CȽȻȻȳȼɂɁȄʡʔ AMIȂɁ ȱȽȻȻȳȼɂɁ Ʌȳɀȳ ȳȼȲȽɀɁȳȲ Ȱɇ ɂȶȳ AȻȳɀȷȱȯȼ 

Society of Illustrators Partnership. See ASIPʕ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ 

Feb. 10, 2014 Notice of Inquiry at 2 (May 21, 2014). 

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ȃȵȳȼȳɀȯɂȳ ȼȽ ɀȽɇȯȺɂɇ ȷȼȱȽȻȳȄ ȴȽɀ ȯɀɂȷɁɂɁ ȰȳȱȯɃɁȳ ȃɃɁȳɀɁ ȯɀȳ ȳȷɂȶȳɀ ɃȼȯɅȯɀȳ Ƚȴ ɂȶȳ ȼȳȳȲ ɂȽ ȱȺȳȯɀ ɂȶȳ 

rights to visual components of literary works licensed through the [Copyright Clearance 

Center][,] or the two existing visual artists collecting societies cannot assure them of a 

comprehensive liceȼɁȳʔȄ359 The association also contended that many visual artists do not 

ȃɀȳȱȳȷɄȳ ȯ Ɂȶȯɀȳ Ƚȴ ɀȽɇȯȺɂȷȳɁ ȱɃɀɀȳȼɂȺɇ ȱȽȺȺȳȱɂȳȲ Ȱɇ ȴȽɀȳȷȵȼ ɀȳȾrographic rights collecting 

ɁȽȱȷȳɂȷȳɁʕȄ ȯɀȵɃȷȼȵ ɂȶȯɂ ȃȽȼȺɇ ȯ ȴȳɅ ʢɁȽȱȷȳɂȷȳɁʣ ȶȯɄȳ ȯɂɂȳȻȾɂȳȲ ɂȽ ȾɀȽɄȷȲȳ ȴȽɀ ȾȯɇȻȳȼɂɁ ɂȽ UʔS. 

ȯɀɂȷɁɂ ɀȷȵȶɂɁ ȶȽȺȲȳɀɁȄ ȯȼȲ ɂȶȯɂ ȾȯɇȻȳȼɂɁ ȷȼ ȯȼɇ ȳɄȳȼɂ Ƚȴɂȳȼ ȵȽ ɂȽ ȳȼɂȷɂȷȳɁ ȼȽɂ ȯɃɂȶȽɀȷɈȳȲ ɂȽ ȯȱɂ Ƚȼ 

behalf of copyright owners.360 The Office agrees Ʌȷɂȶ ɂȶȷɁ ȱȽȻȻȳȼɂȳɀ ɂȶȯɂ ȃʢȯʣ ɁɂȯɂɃɂȽɀɇ ȳɆɂȳȼȲȳȲ 

collective license could address this problem by codifying the obligation to distribute licensing 

revenue and providing a regulatory mechanism that would assure that organizations 

ɀȳȾɀȳɁȳȼɂȷȼȵ ɀȷȵȶɂɁ ȶȽȺȲȳɀɁ ȯȱɂɃȯȺȺɇ ȶȯɄȳ Ȱȳȳȼ ȯɃɂȶȽɀȷɈȳȲ ɂȽ ȲȽ ɁȽʔȄ361 

c. Photographs 

Finally, the Office recommends that the ECL framework be used to permit the licensing of 

photographs for use in qualifying mass digitization projects. Photographs represent a source of 

immense research and educational value to the public, yet both the sheer volume of such works 

and the lack of centralized rights clearance mechanisms are impediments to licensing on a large 

scale.362 Making photographs eligible for ECL could help to address this inefficiency by 

encouraging photography rightsholders to develop representative CMOs to issue and manage 

digital licenses. Some stakeholder groups have expressed interest in such a system and have 

suggested that at least some of the structures necessary for ECL may already exist within the 

photography sector. American Photographic Artists, Inc., for example, advocated for a statutory 

licensing system and collective rights management for secondary uses of photographs, arguing 

ɂȶȯɂ ȃʢɂʣȶȳ PLUS RȳȵȷɁɂɀɇʕ ȯȼȲ Ƚɂȶȳɀ ȲȷɁɂɀȷȰɃɂȷȽȼ ɄȳȶȷȱȺȳɁ ȷȼ ɂȶȳ ȷȼȲɃɁɂɀɇʕ ȼȽɅ ɁɃȾȾȺɇ ȯ ȻȳȯȼɁ Ƚȴ 

distributing . . . revenues to the rights owners, and can assist in making equitable distributions . . . 

ɂȽ ȱɀȳȯɂȽɀɁ ȯȼȲ ɂȶȳȷɀ ɀȳȾɀȳɁȳȼɂȯɂȷɄȳɁ Ʌȶȳȼ ȯ ɀȷȵȶɂɁ ȽɅȼȳɀ ȱȯȼȼȽɂ Ȱȳ ȴȽɃȼȲʔȄ363 

359 AMI Additional Comments at 11. 

360 Id. at 12. 

361 Id. 

362 As noted, see supra note 239, the Office recently issued a Notice of Inquiry seeking public comment on 

various aspects of the current marketplace for photographs and other visual works. 

363 APAʕ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ FȳȰʔ ˼˻ʕ ˽˻˼˿ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˿ 

(May 20, 2014). 

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2. Types of Users and Uses 

Congress has a range of options in determining what types of entities should be eligible to 

obtain a mass digitization license and for what purposes. Perhaps the most narrow approach 

would be to limit such licenses to the groups covered by the exceptions under Section 108: 

ȺȷȰɀȯɀȷȳɁ ȯȼȲ ȯɀȱȶȷɄȳɁ ȯȱɂȷȼȵ ȃɅȷɂȶȽɃɂ ȯȼɇ ȾɃɀȾȽɁȳ Ƚȴ Ȳȷɀȳȱɂ Ƚɀ ȷȼȲȷɀȳȱɂ ȱȽȻȻȳɀȱȷȯȺ ȯȲɄȯȼɂȯȵȳʔȄ364 

At the other end of the spectrum would be a model like the U.K. ECL system, which does not 

restrict the class of eligible users or distinguish between nonprofit and commercial uses. In our 

view, an appropriate middle-ground approach would be to eschew limits on the categories of 

users who may engage in mass digitization activities, but to limit permissible uses to those 

undertaken for nonprofit educational or research purposes and without any purpose of direct or 

indirect commerciaȺ ȯȲɄȯȼɂȯȵȳʔ SɃȱȶ ȯ ȴɀȯȻȳɅȽɀȹ ɅȽɃȺȲ ɀȳɁɂɀȷȱɂ ɂȶȳ ȺȳȵȷɁȺȯɂȷȽȼȂɁ ɁȱȽȾȳ ɂȽ ȻȯɁɁ 

digitization projects serving the public interest, while permitting entities falling outside the 

traditional categories of libraries and archives but engaged in similar activities to utilize the 

system under proper circumstances. Thus, while a for-profit entity would not be precluded from 

undertaking a mass digitization project (such as through a partnership with a nonprofit library or 

educational institution), it would not be permitted to generate revenue from the collection by, for 

example, displaying advertisements or charging access fees. 

In addition, to make clear that ECL is intended as a solution for large-scale digitization 

projects only, we recommend that the legislation require that any licensed uses be made in 

connection with the creation or operation of a qualifying digital collection. The Office believes 

that a prospective ECL licensee also should be required to demonstrate that the clearance of rights 

on an individual basis would be impracticable. This additional requirement would prevent a 

licensee from using the system to avoid seeking individual permissions in situations where they 

could be obtained notwithstanding the number of works involved – for example, where a 

collection consists of works owned by a single author. 

Upon obtaining a license, a user would be permitted to make the covered digital collection 

available online in accordance with any statutory use restrictions as noted above, and subject to 

specified limitations on eligible end-users and methods of access. A potential model may be 

found in the portions of the Google Books settlement pertaining to users of Institutional 

Subscriptions. Those provisions would have allowed access to the digital collection by 

ȃȯȾȾɀȽȾɀȷȯɂȳ ȷȼȲȷɄȷȲɃȯȺɁ Ʌȷɂȶȷȼ ɂȶȳ ɁɃȰɁȱɀȷȰȳɀ ȷȼɁɂȷɂɃɂȷȽȼʔȄ365 In the case of educational 

364 17 U.S.C. § 108(a)(1). 

365 Google Books Am. Settlement, supra note 34, § 4.1(e). 

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ȷȼɁɂȷɂɃɂȷȽȼɁʕ ȯȾȾɀȽȾɀȷȯɂȳ ȷȼȲȷɄȷȲɃȯȺɁ ȷȼȱȺɃȲȳȲ ȃȴȯȱɃȺɂɇʕ ɁɂɃȲȳȼɂɁʕ ɀȳɁȳȯɀȱȶȳɀɁʕ Ɂɂȯȴȴ ȻȳȻȰȳɀɁʕ 

librarians, personnel and business invitees of the subscriber and walk-in users from the general 

ȾɃȰȺȷȱʔȄ366 FȽɀ ȾɃȰȺȷȱ ȺȷȰɀȯɀȷȳɁʕ ɁɃȱȶ ȷȼȲȷɄȷȲɃȯȺɁ ȷȼȱȺɃȲȳȲ ȃȺȷȰɀȯɀɇ ȾȯɂɀȽȼɁ ȯȼȲ ȾȳɀɁȽȼȼȳȺʔȄ367 The 

settlement would have permitted remote access for higher educational institutions; for most other 

subscribers, remote access would have required approval by the Book Rights Registry.368 

To enforce these restrictions, the user would be required to implement and maintain 

reasonable digital security measures preventing unauthorized access to the licensed collection. 

This recommendation is discussed in Part III.C.6 below. 

3. CMO Authorization Requirements 

ECL regimes typically require that CMOs be subject to approval and oversight by the 

appropriate public authority.369 Under a U.S. ECL program, the Copyright Office would be the 

logical agency to conduct those tasks. A CMO seeking ECL authorization would be required to 

submit an application to the Office demonstrating, among other things, its representativeness in 

the relevant field, the consent of its membership to the licensing proposal, and sufficient 

standards of transparency, accountability, and good governance in its operations. 

As to the level of representation and consent, the U.K. ECL system offers useful guidance. 

The U.K regulations provide that ECL authorization may be granted only if the Secretary of State 

ȷɁ ɁȯɂȷɁȴȷȳȲ ɂȶȯɂ ȃɂȶȳ ɀȳȺȳɄȯȼɂ ȺȷȱȳȼɁȷȼȵ ȰȽȲɇȂɁ ɀȳȾɀȳɁȳȼɂȯɂȷȽȼ ȷȼ ɂȶȳ ɂɇȾȳ Ƚȴ ɀȳȺȳɄȯȼɂ ɅȽɀȹɁ Ʌȶȷȱȶ 

are to be the subject of the proposed Extended Collective Licensing Scheme is significantʔȄ370 To 

ȿɃȯȺȷȴɇʕ ȯ CMO ȻɃɁɂ ɁȶȽɅ ȃɂȶȳ ȼɃȻȰȳɀ Ƚȴ ɀȷȵȶɂ ȶȽȺȲȳɀɁȂ ȻȯȼȲȯɂȳɁ ȷɂ ȶȯɁʕ ɀȳȺȯɂȷɄȳ ɂȽ ɂȶȳ 

(estimated) total number of mandates; and the number of works it controls relative to the 

ʠȳɁɂȷȻȯɂȳȲʡ ɂȽɂȯȺ ȼɃȻȰȳɀ Ƚȴ ɅȽɀȹɁʔȄ371 Tȶȳ UʔKʔ IPO ȶȯɁ ȳɆȾȺȯȷȼȳȲ ɂȶȯɂ ɂȶȷɁ ɂȳɁɂ ȃȼȳȳȲɁ ɂȽ Ȱȳ 

ȴȺȳɆȷȰȺȳȄ ȰȳȱȯɃɁȳ ȃɅȶȳɀȳ ɂȶȳ ɂȽɂȯȺ ȼɃȻȰȳɀ Ƚȴ ȼȽȼ-members is not known the determination of a 

366 Id. 

367 Id. 

368 Id. § 4.1(a)(iv). 

369 For specific approval and oversight requirements, see the Comparative Summary of Select Extended 

Collective Licensing Provisions, attached as Appendix F. 

370 U.K. ECL Regulations, S.I. 2014/2558, art. 4, ¶ 4(b). 

371 EXTENDING THE BENEFITS OF COLLECTIVE LICENSING, supra note 126, at 8. 

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Ⱦȳɀȱȳȼɂȯȵȳ ȷɁ ȷȻȾȽɁɁȷȰȺȳʔȄ372 Iȼ ȯȲȲȷɂȷȽȼʕ CMOɁ ȃȻɃɁɂ ɁȶȽɅ ɂȶȯɂ ɂȶȳɇ ȶȯɄȳ ȻȯȲȳ ȯȺȺ ɀȳȯɁȽȼȯȰȺȳ 

efforts to find out total numbers of rights holders and works, using a transparent 

ȻȳɂȶȽȲȽȺȽȵɇʔȄ373 Tȶȳ ȱȽȼɁȳȼɂ ȽȰȺȷȵȯɂȷȽȼ ɁȷȻȷȺȯɀȺɇ ȾɀȽɄȷȲȳɁ ȯ ȃȶȷȵȶ ȰɃɂ ȼȽȼ-ɁȾȳȱȷȴȷȱ ɂȶɀȳɁȶȽȺȲʕȄ 

ɀȳȿɃȷɀȷȼȵ ȯ CMO ɂȽ ȃȲȳȻȽȼɁɂɀȯɂȳ ɂȶȳ ɁɃȾȾȽɀɂ Ƚȴ ȯ ɁɃȰɁɂȯȼɂȷȯȺ ȾɀȽȾȽɀɂȷȽȼ Ƚȴ ȷɂɁ ɄȽɂȷȼȵ ȻȳȻȰȳɀɁ 

ȴȽɀ ȯȼɇ ECL ȯȾȾȺȷȱȯɂȷȽȼʔȄ374 To ensure that consent is informed, a CMO must provide details on 

ȃȶȽɅ ȯȼȲ Ʌȶȳȼ ȻȳȻȰȳɀɁ ȯɀȳ ɂȽȺȲ Ƚȴ ɂȶȳ ECL ȯȾȾȺȷȱȯɂȷȽȼʕ Ʌȶȯɂ ɂȶȳɇ ȯɀȳ ɂȽȺȲ ȯȰȽɃɂ ɂȶȳ ECL 

ȯȾȾȺȷȱȯɂȷȽȼʕ ȯȼȲ ȶȽɅ ȯȼȲ Ʌȶȳȼ ɂȶȳɇ ȯɀȳ ȾȽȺȺȳȲʔȄ375 

Some commenters cautioned that it may prove difficult for any single U.S. CMO to 

demonstrate a substantial level of representation given the lack of an extensive CMO 

ȃȷȼȴɀȯɁɂɀɃȱɂɃɀȳȄ ȷȼ ɂȶȳ UȼȷɂȳȲ SɂȯɂȳɁʔ376 Tȶȳɇ ȯɁɁȳɀɂȳȲ ɂȶȯɂʕ ȷȼ ȱȽȼɂɀȯɁɂ ɂȽ EɃɀȽȾȳȂɁ ȺȽȼȵȳɁɂȯȰȺȷɁȶȳȲ CMOɁʕ Ʌȶȷȱȶ ȃɀȳȾɀȳɁȳȼɂ ȯȼȲ Ȼȯȹȳ ȾȯɇȻȳȼɂɁ ɂȽ ɂȶȽɃɁȯȼȲɁ Ƚȴ ɀȷȵȶɂɁȶȽȺȲȳɀɁʕȄ ɂȶȳ UʔS. 

CMOɁ ȱɃɀɀȳȼɂȺɇ ȷȼ ȽȾȳɀȯɂȷȽȼ ȃȲȽ ȼȽɂ ɀȳȾɀȳɁȳȼɂ ɂȶȳ ȻȯȸȽɀȷɂɇ Ƚȴ ɀȷȵȶɂɁȶȽȺȲȳɀɁ Ƚȴ ȱȺȯɁɁȳɁ Ƚȴ 

ɅȽɀȹɁʔȄ377 Others, however, emphasized the broad scope of some existing U.S. CMO operations. 

Tȶȳ CȽȾɇɀȷȵȶɂ CȺȳȯɀȯȼȱȳ Cȳȼɂȳɀ ʠCCCʡʕ ȴȽɀ ȳɆȯȻȾȺȳʕ ɁɂȯɂȳȲ ɂȶȯɂ ȷɂ ȃȻȯȼages hundreds of millions 

Ƚȴ ɀȷȵȶɂɁ ɂȽ ɂȳȼɁ Ƚȴ ȻȷȺȺȷȽȼɁ Ƚȴ ɅȽɀȹɁȄ ȯȼȲ ȶȯɁ ȃȲȷɁɂɀȷȰɃɂȳȲ ȽɄȳɀ ʃ˼ ȰȷȺȺȷȽȼ ɂȽ ȾȯɀɂȷȱȷȾȯɂȷȼȵ 

ɀȷȵȶɂɁȶȽȺȲȳɀɁ ȽɄȳɀ ɂȶȳ ȾȯɁɂ ɁȳɄȳȼ ɇȳȯɀɁʔȄ378 The Authors Guild similarly noted that the Authors 

Registry – an affiliated payment agent for foreign-collected royalties – ȃȶȯɁ ȾȯȷȲ ȽɃɂ ȻȽɀȳ ɂȶȯȼ 

ʃ˽˽ ȻȷȺȺȷȽȼ ɂȽ ȻȽɀȳ ɂȶȯȼ ˼˻ʕ˻˻˻ ȯɃɂȶȽɀɁʔȄ379 Moreover, these commenters touted the 

ȽɀȵȯȼȷɈȯɂȷȽȼɁȂ ȳɆȾȳɀȷȳȼȱȳ ȯȼȲ ɁɃȱȱȳɁɁ ȷȼ ȺȽȱȯɂȷȼȵ ȶȽȺȲȳɀɁ Ƚȴ ɀȷȵȶɂɁ ȷȼ ȃȺȽɁɂȄ Ƚɀ ȽɃɂ-of-print 

works.380 Such evidence may suggest at least some capacity to achieve greater representation in 

372 U.K. GOVERNMENT RESPONSE, supra note 126, at 5; EXTENDING THE BENEFITS OF COLLECTIVE LICENSING, 

supra note 126, at 8. 

373 U.K. GOVERNMENT RESPONSE, supra note 126, at 5. 

374 Id. at 6. 

375 Id. at 7. 

376 Berkeley Digital Library Copyright Project Initial Comments at 28. 

377 Id. at 28-29. 

378 CȽȾɇɀȷȵȶɂ CȺȳȯɀȯȼȱȳ Cȳȼɂȳɀʕ Iȼȱʔ ʠȃCCCȄʡʕ IȼȷɂȷȯȺ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ 

OȴȴȷȱȳȂɁ Oȱɂʔ ˽˽ʕ ˽˻˼˽ NȽɂȷȱȳ Ƚȴ IȼȿɃȷɀɇ ȯɂ ˽ ʠFȳȰʔ ˿ʕ ˽˻˼˾ʡ ʠȃCCC IȼȷɂȷȯȺ CȽȻȻȳȼɂɁȄʡʔ 

379 Authors Guild Additional Comments at 10. 

380 Id. at 10; CCC Initial Comments at 2-3. 

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the event ECL is implemented and a market emerges for the large-scale licensing of such works. 

In addition, both CMOs have partnerships with foreign collecting societies, which suggests some 

existing framework for providing licensing services on an international basis.381 

As an additional prerequisite to licensing authorization, a CMO would be required to 

demonstrate its adherence to transparency, accounting, and good-governance standards. We 

recommend that these requirements be prescribed through Copyright Office regulations. Such a 

ɁȶȽɅȷȼȵ ȷɁ ȱɀȷɂȷȱȯȺ ȷȼ Ⱥȷȵȶɂ Ƚȴ ɂȶȳ ȱȽȼȱȳɀȼ ȳɆȾɀȳɁɁȳȲ Ȱɇ ɁȽȻȳ ȱȽȻȻȳȼɂȳɀɁ ɂȶȯɂʕ ȷȼ Ⱦɀȯȱɂȷȱȳʕ ȃȺȷɂɂȺȳ 

ȻȽȼȳɇ ȷɁ ȯȱɂɃȯȺȺɇ ȲȷɁɂɀȷȰɃɂȳȲ ɂȽ ɂȶȳ ȱɀȳȯɂȽɀɁȄ Ȱɇ CMOɁʕ ȃɂȶȳɀȳ ȱȯȼ Ȱȳ ȯ Ⱥȯȱȹ Ƚȴ ȯȱȱȽɃȼɂȯȰȷȺȷɂɇʕ ȯȼȲ 

ʢCMOɁʣ ȲȽ ȼȽɂ ɂȯȹȳ ȷȼɂȽ ȯȱȱȽɃȼɂ ɂȶȳ Ȳȷȴȴȳɀȳȼɂ ȷȼɂȳɀȳɁɂɁ Ƚȴ Ȳȷȴȴȳɀȳȼɂ ȯɃɂȶȽɀɁʔȄ382 The regulations 

ɅȽɃȺȲ ɀȳȿɃȷɀȳ ȷȼȴȽɀȻȯɂȷȽȼ Ƚȼ ȴȯȱɂȽɀɁ ɁɃȱȶ ȯɁ ɂȶȳ CMOȂɁ ȳɆȾȳɀȷȳȼȱȳ ȯȲȻȷȼȷɁɂȳɀȷȼȵ ȱȽȺȺȳȱɂȷɄȳ 

licenses in the relevant field, the composition of its board and management, its accounting and 

distribution policies, and its proposals for protecting the interests of non-member rightsholders. 

We also recommend that the CMO application process include a notice and public comment 

ȾȳɀȷȽȲ ȷȼ Ʌȶȷȱȶ ɂȶȳ Oȴȴȷȱȳ ȱȽɃȺȲ ȽȰɂȯȷȼ ɁɂȯȹȳȶȽȺȲȳɀ ɄȷȳɅɁ Ƚȼ ɂȶȳ CMOȂɁ ȱȯȾȯȱȷɂɇ ɂȽ Ȼȯȼȯȵȳ 

extended collective licenses. A similar process is provided for under the U.K. ECL regulations.383 

Once authorized, a CMO would be subject to auditing by rightsholders. This requirement 

would be analogous to existing regulations giving copyright owners and performers the right to 

audit the designated entity (currently SoundExchange) charged with distributing royalties under 

the statutory licenses for ephemeral recordings and digital audio transmissions.384 Like those 

ȾɀȽɄȷɁȷȽȼɁʕ ɂȶȳ ȯɃȲȷɂ ɀȳȵɃȺȯɂȷȽȼɁ ɃȼȲȳɀ ȯȼ ECL ȾɀȽȵɀȯȻ ɁȶȽɃȺȲ Ɂȳȳȹ ɂȽ ȻȷȼȷȻȷɈȳ ȯ CMOȂɁ 

exposure to undue administrative burdens – for example, by limiting the number of audits 

381 See About RightsDirect, RIGHTSDIRECT, http://www.rightsdirect.com/about-rightsdirect/ (CCC 

international subsidȷȯɀɇ ȼȽɂȳɁ ɂȶȯɂ ȷɂ ɅȽɀȹɁ ȃȷȼ ȱȺȽɁȳ ȾȯɀɂȼȳɀɁȶȷȾ Ʌȷɂȶ ɂȶȳ ɅȽɀȺȲȂɁ ȺȳȯȲȷȼȵ ɀȷȵȶɂɁȶȽȺȲȳɀɁ 

ȯȼȲ ȱȽȺȺȳȱɂȷȼȵ ɁȽȱȷȳɂȷȳɁȄ ȯȼȲ ɂȶȯɂ ȃʢɂʣȽȵȳɂȶȳɀʕ CCC ȯȼȲ RȷȵȶɂɁDȷɀȳȱɂ ɁȳɀɄȳ ȻȽɀȳ ɂȶȯȼ ˾Ȁʕ˻˻˻ ȱȽȻȾȯȼȷȳɁ ȯȼȲ 

ȽɄȳɀ ˼˽ʕ˻˻˻ ɀȷȵȶɂɁȶȽȺȲȳɀɁ ȯɀȽɃȼȲ ɂȶȳ ȵȺȽȰȳȄʡʗ Royalties, THE AUTHORS REGISTRY, 

http://www.authorsregistry.org/bio.htm (listing foreign collecting societies from which Authors Registry 

receives payments). 

382 LCA Additional Comments at 7. 

383 U.K. ECL Regulations, S.I. 2014/2558, art. 7. 

384 See 37 C.F.R. § 380.7. 

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permitted for any one calendar year and/or requiring the rightsholder to bear the cost of an audit 

unless a substantial underpayment is discovered.385 

4. Opt-Out Provisions 

Although existing ECL laws do not uniformly give copyright owners the right to opt out 

of licensing, the Office believes that such a right is essential to the legitimacy of such a system in 

the United States. Any ECL legislation accordingly should provide that a rightsholder may 

exclude or limit the grant of licenses with respect to his or her work.386 CMOs should be required, 

among other obligations, to respond to and act upon opt-out notices within a prescribed time 

period;387 to provide a means for rightsholders to opt out before licensing commences;388 to 

establish a process by which copyright owners can opt out multiple works at once;389 and, in the 

case of a copyright owner opting out after an ECL license has been issued, to terminate the license 

within a reasonable time period.390 The Office recommends that specific opt-out procedures be 

established through regulations, which should seek to ensure that opting out is made as 

straightforward as possible, with minimal costs and burdens placed on rightsholders. 

385 Cf. id. § ˾ȃ˻ʔȂʠȰʡ ʠȃA CȽȾɇɀȷȵȶɂ OɅȼȳɀ Ƚɀ PȳɀȴȽɀȻȳɀ Ȼȯɇ ȱȽȼȲɃȱɂ ȯ ɁȷȼȵȺȳ ȯɃȲȷɂ Ƚȴ ɂȶȳ CȽȺȺȳȱɂȷɄȳ ʔ ʔ ʔ 

during any given calendar year, for any or all of the prior 3 calendar years, but no calendar year shall be 

ɁɃȰȸȳȱɂ ɂȽ ȯɃȲȷɂ ȻȽɀȳ ɂȶȯȼ ȽȼȱȳʔȄʡʕ ʠȵʡ ʠȃTȶȳ CȽȾɇɀȷȵȶt Owner or Performer requesting the verification 

procedure shall pay the cost of the procedure, unless it is finally determined that there was an 

underpayment of 10% or more, in which case the Collective shall, in addition to paying the amount of any 

underȾȯɇȻȳȼɂʕ Ȱȳȯɀ ɂȶȳ ɀȳȯɁȽȼȯȰȺȳ ȱȽɁɂɁ Ƚȴ ɂȶȳ ɄȳɀȷȴȷȱȯɂȷȽȼ ȾɀȽȱȳȲɃɀȳʔȄʡʔ 

386 Cf. EȼɂȳɀȾɀȷɁȳ ȯȼȲ RȳȵɃȺȯɂȽɀɇ RȳȴȽɀȻ Aȱɂ ˽˻˼˾ Ɂȳȱʔ ȂȂʕ § ˼˼ȁBʠ˾ʡ ʠUʔKʔʡ ʠȃTȶȳ ɀȳȵɃȺȯɂȷȽȼɁ ȻɃɁɂ ȾɀȽɄȷȲȳ 

for the copyright owner to have a right to limit or exclude the grant of licenses by virtue of the 

ɀȳȵɃȺȯɂȷȽȼɁʔȄʡʔ 

387 See U.K. ECL Regulations, S.I. 2014/2588, art. 16, ¶ 4 (requiring action by CMOs within fourteen days of 

receipt of an opt-out notice). 

388 See id., art. 16, ¶ 3(b) (CMOs must allow non-ȻȳȻȰȳɀ ɀȷȵȶɂɁȶȽȺȲȳɀɁȂ ȽȾɂ ȽɃɂɁ ɂȽ ȃɂȯke effect before the 

ȱȽȻȻȳȼȱȳȻȳȼɂ Ƚȴ ɂȶȳ EɆɂȳȼȲȳȲ CȽȺȺȳȱɂȷɄȳ LȷȱȳȼɁȷȼȵ SȱȶȳȻȳȄʡʔ 

389 See id.ʕ ȯɀɂʔ ˿ʕ ¶ ˿ʠȲʡ ʠSȳȱɀȳɂȯɀɇ ȻɃɁɂ Ȱȳ ɁȯɂȷɁȴȷȳȲ ɂȶȯɂ ȃɂȶȳ ȽȾɂ ȽɃɂ ȯɀɀȯȼȵȳȻȳȼɂɁʕ ȷȼȱȺɃȲȷȼȵ ɂȶȽɁȳ ȴȽɀ 

multiple works, are adequate to protect the interests of right holdeɀɁȄʡʔ 

390 The U.K. regulations require termination within six months of receipt of such a notice, or within nine 

months where the licensee is an educational establishment and the CMO had obtained government consent 

to the longer term at the time of its ECL authorization. See id. art. 16, ¶ 5. The IPO reports that this 

ȳɆȱȳȾɂȷȽȼ ȴȽɀ ȳȲɃȱȯɂȷȽȼȯȺ ȳɁɂȯȰȺȷɁȶȻȳȼɂɁ ɅȯɁ ȯȲȽȾɂȳȲ ȃɂȽ ȱȽɄȳɀ ȯȼ ȯȱȯȲȳȻȷȱ ɇȳȯɀʔȄ U.K. GOVERNMENT 

RESPONSE, supra note 126, at 35. 

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5. Determination of License Terms 

Under an ECL system, license terms are negotiated between the relevant CMO and 

prospective users. Thus, an authorized CMO would be permitted to negotiate royalty rates for 

uses made in connection with a qualifying mass digitization project – specifically, the creation of 

digital copies of works, the display of works through online access, and copying and printing by 

end-users. Given that the CMO would be authorized to negotiate on behalf of all rightsholders in 

a particular field, the legislation would need to provide an antitrust exemption similar to those in 

other Copyright Act provȷɁȷȽȼɁ ȯȺȺȽɅȷȼȵ ȼȳȵȽɂȷȯɂȷȽȼ Ȱɇ ȯ ȃȱȽȻȻȽȼ ȯȵȳȼɂʔȄ391 To reduce 

disparities in bargaining power between the CMO and users, the Office recommends that the 

legislation also provide a parallel exemption permitting eligible users to negotiate ECL terms and 

conditions collectively notwithstanding any provision of the antitrust laws. This would allow 

user groups to negotiate through a collective counterpart to the CMO, such as a university or 

library consortium.392 The Copyright Act currently includes similar dual exemptions under 

various statutory licensing provisions.393 

The proposed Google Books settlement provides an example of how ECL pricing 

agreements could be structured. For present purposes, the most relevant aspects of that 

agreement are the pricing and payment terms applicable to uses by educational institutions and 

public libraries. Those entities would have been eligible to purchase Institutional Subscriptions 

allowing users to access the full contents of a digital collection online.394 Google and the proposed 

BȽȽȹɁ RȷȵȶɂɁ RȳȵȷɁɂɀɇ Ʌȳɀȳ ɂȽ ȲȳɂȳɀȻȷȼȳ ɁɃȰɁȱɀȷȾɂȷȽȼ Ⱦɀȷȱȷȼȵ ȰȯɁȳȲ Ƚȼ ȯ ȺȷȱȳȼɁȳȳȂɁ ȴɃȺȺ-time 

employment equivalency – or, for a higher educational institution, its number of full-time 

391 See 17 U.S.C. §§ 112(e)(2) (authorizing copyright owners and users to designate common agents to 

negotiate royalty rates and terms under statutory license for making of ephemeral recordings, 

notwithstanding any provision of the antitrust laws), 114(e)(1) (same for digital public performance of 

sound recordings), 115(c)(3)(B) (same for making and distributing phonorecords of nondramatic musical 

works), 118(b) (same for reproduction, performance, and display of published nondramatic musical, 

pictorial, graphical, and sculptural works by public broadcasting entities). 

392 Cf. Ginsburg, Fair Use for Free, supra note 99, at 53-55 (describing antitrust exemption in proposed Free 

Market Royalty Act that would permit collective negotiation by webcasters for digital public performance 

licenses). 

393 See supra note 391. 

394 Google Books Am. Settlement, supra note 34, §§ 1.77, 4.1. 

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equivalent students – ɂȯȹȷȼȵ ȷȼɂȽ ȯȱȱȽɃȼɂ ȃȾɀȷȱȳɁ ȴȽɀ ȱȽȻȾȯɀȯȰȺȳ products and services, surveys 

Ƚȴ ȾȽɂȳȼɂȷȯȺ ɁɃȰɁȱɀȷȰȳɀɁʕ ȯȼȲ Ƚɂȶȳɀ ȻȳɂȶȽȲɁ ȴȽɀ ȱȽȺȺȳȱɂȷȼȵ Ȳȯɂȯ ȯȼȲ Ȼȯɀȹȳɂ ȯɁɁȳɁɁȻȳȼɂʔȄ395 

The settlement provided a royalty allocation plan intended to compensate copyright 

owners on both a per-work and a per-use basis. Revenues collected by the Book Rights Registry 

from subscription fees would have been divided into two separate funds: a Subscription 

Inclusion Fund and a Subscription Usage Fund.396 The Subscription Inclusion Fund was to be 

distributed to rightsholders when it contained an amount sufficient to pay $200 for every book 

and $50 and $25, respectively, ȴȽɀ ȳɄȳɀɇ ȴɃȺȺ ȯȼȲ ȾȯɀɂȷȯȺ ȃIȼɁȳɀɂȄ ʠɁȳȾȯɀȯɂȳȺɇ ȱȽȾɇɀȷȵȶɂȳȲ ȻȯɂȳɀȷȯȺ 

such as forewords, essays, poems, and tables) included in the subscription database.397 Monies in 

the Subscription Usage Fund were to be allocated to rightsholders at the end of specified 

reporting periods according to a usage formula to be developed by the Registry.398 The formula 

could ȃinclude factors such as the number of times users view a Book, how much of the Book is 

ɄȷȳɅȳȲʕ ʢȯȼȲʣ Ʌȶȳɂȶȳɀ ȯȼȲ ȶȽɅ ȻɃȱȶ Ƚȴ ɂȶȳ BȽȽȹ ȷɁ ȱȽȾȷȳȲ/ȾȯɁɂȳȲ ȯȼȲ/Ƚɀ ȾɀȷȼɂȳȲʔȄ399 

In addition to Institutional Subscriptions, the settlement would have authorized Google to 

provide free public access to books through computer terminals at not-for-profit higher education 

institutions and public libraries.400 For higher education institutions, the number of terminals 

would have been based on full-ɂȷȻȳ ȳȿɃȷɄȯȺȳȼȱɇʗ ȴȽɀ ȳɆȯȻȾȺȳʕ ȷȼɁɂȷɂɃɂȷȽȼɁ Ƚɂȶȳɀ ɂȶȯȼ ȯɁɁȽȱȷȯɂȳȂɁ 

colleges would have had one terminal for every 10,000 full-time equivalent students.401 For public 

libraries, the ratio would have been one terminal per library building.402 Users would have been 

395 Id. § 4.1(a)(iii), (vii).
 

396 Id., Attachment C §§ 1.1(b), 1.2(f)(i)(1).
 

397 Id.ʕ AɂɂȯȱȶȻȳȼɂ C § ˼ʔ˽ʠȴʡʠȷʡʠ˽ʡʕ ʠȷȷʡʔ ȃIȼɁȳɀɂȄ ȷɁ ȲȳȴȷȼȳȲ ȯɂ SȳȱɂȷȽȼ ˼ʔȂȀ Ƚȴ ɂȶȳ Ȼȯȷȼ ȲȽȱɃȻȳȼɂʔ 

398 Id., Attachment C § 1.1(a), (d).
 

399 Id., Attachment C § 1.1(a).
 

400 Id. § 4.8(a)(i).
 

401 Id. § 4.8(a)(i)(1).
 

402 Id. § 4.8(a)(i)(3).
 

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able to print pages for a per-page fee, with revenues divided between Google and applicable 

rightsholders.403 

To be clear, we describe these provisions not to endorse any specific royalty terms, but 

rather to emphasize that despite the complexity of the issues surrounding creation of an ECL 

regime in the United States, they are by no means insurmountable. As the settlement 

demonstrates, representatives of rightsholder and user communities have previously agreed to a 

detailed licensing framework for mass digitization activities involving literary works. The 

settlement thus would seem to suggest the possibility of negotiated ECL agreements based on a 

ɁȷȻȷȺȯɀ ȻȽȲȳȺʔ AɁ Ƚȼȳ ȷȼȲɃɁɂɀɇ ȵɀȽɃȾ ȼȽɂȳȲʕ ɂȶȳ ɁȳɂɂȺȳȻȳȼɂ ȃɁȶȽɅɁ ɂȶȯɂ ɀȷȵȶɂɁ ȶȽȺȲȳɀɁ ȯȼȲ ɀȷȵȶɂɁ 

users are capable of coming to the table and arriv[ing] at a solution which serves the interests of 

ȯȺȺ ɁɂȯȹȳȶȽȺȲȳɀɁ ȯȼȲ ȯȺɁȽ ȾɀȽȻȽɂȳɁ ɂȶȳ ȵȽȯȺɁ Ƚȴ ȱȽȾɇɀȷȵȶɂ ȺȯɅʔȄ404 

To address situations in which the parties are unable to agree to terms, an ECL system 

would need to establish a mechanism to facilitate resolution of disputes. This is necessary in part 

ȰȳȱȯɃɁȳ Ƚȴ ECLȂɁ ȾȽɂȳȼɂȷȯȺ ȯȼɂȷɂɀɃɁɂ ȷȻȾȺȷȱȯɂȷȽȼɁʖ ȯ CMO ȯɃɂȶȽɀȷɈȳȲ ɂȽ ȺȷȱȳȼɁȳ ȯȼ ȳȼɂȷɀȳ ȱȺȯɁɁ Ƚȴ 

works might otherwise be able to demand unreasonable licensing terms. While this imbalance in 

bargaining power would be mitigated if, as we recommend, the legislation also permitted 

collective negotiation by users, the availability of some third-party dispute resolution process 

likely would still be needed to ensure that negotiations proceed in good faith. In various other 

contexts, the Copyright Act provides for statutory licensing in the event the parties cannot agree 

to terms, with rates set by the Copyright Royalty Board (CRB).405 A statutory licensing 

ȃȰȯȱȹɁɂȽȾʕȄ ȶȽɅȳɄȳɀʕ ȷɁ ȷȼ ɂȳȼɁȷȽȼ Ʌȷɂȶ Ƚȼȳ Ƚȴ ɂȶȳ ȴɃȼȲȯȻȳȼɂȯȺ ȾɀȳȻȷɁȳɁ Ƚȴ ȯȼ ECL ȾɀȽȵɀȯȻ – 

privately negotiated licensing terms – and in fact could distort negotiations by deterring some 

ȾȯɀɂȷȳɁ ȴɀȽȻ ɀȳȯȱȶȷȼȵ ȯȵɀȳȳȻȳȼɂɁʔ ȃʢWʣȳɀȳ ȱȽȻȾɃȺɁȽɀɇ ȺȷȱȳȼɁȷȼȵ ȯȼ ȽȾɂȷȽȼ ɁȶȽɃȺȲ ȼȳȵȽɂȷȯɂȷȽȼɁ 

fail, actors who believe they have more to gain from a compulsory license regime than from a 

ȼȳȵȽɂȷȯɂȳȲ ȺȷȱȳȼɁȳ Ȼȷȵȶɂ ȼȽɂ Ȱȯɀȵȯȷȼ ȷȼ ȵȽȽȲ ȴȯȷɂȶʔȄ406 The Office accordingly is reluctant to 

403 Id. § 4.8(a)(ii); id., Attachment C § 2.1 (distribution of printing fees from Public Access Service to 

rightsholders). 

404 Authors Guild Additional Comments at 9. 

405 See 17 U.S.C. §§ 111 (cable retransmissions), 112 (ephemeral recordings), 114 (digital public performance 

of sound recordings), 115 (mechanical rights in nondramatic musical works), 116 (jukeboxes), 118 (public 

broadcasting), 119 (satellite retransmissions), 122 (local into local satellite retransmissions). 

406 Ginsburg, Fair Use for Free, supra note 99, at 55. 

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recommend a mandatory adjudication process requiring rates and terms to be set by a non-party 

government agency. 

There are, however, a number of more flexible dispute resolution procedures that 

Congress could consider. At a minimum, the government could play a role as a facilitator of 

negotiations through informal mediation proceedings. Several foreign countries with ECL 

regimes provide a government-appointed mediator in the event the parties cannot agree to 

license terms,407 and we believe the CRB is well suited to serve that function under a U.S. ECL 

system. Should Congress wish to provide for a binding decision in cases where mediation fails to 

produce agreement, it could consider authorizing the CRB to resolve disputes through some form 

of arbitration.408 Of course, any binding arbitration would make the system more like a 

compulsory licensing scheme, and therefore Congress would need to carefully consider how such 

a process might fit within a voluntary licensing program. At least two foreign ECL jurisdictions 

seek to achieve a balance through voluntary procedures under which the parties can agree to 

submit their dispute to a binding proceeding, but are not required to do so.409 The Office is 

interested in receiving the views of interested parties on which form of dispute resolution would 

serve the goals of the system most effectively. 

407 See AȾȾȳȼȲȷɆ Fʕ ȃDȷɁȾɃɂȳ RȳɁȽȺɃɂȷȽȼ MȳȱȶȯȼȷɁȻȄ ȱȽȺɃȻȼʔ 

408 For example, one prominent academic has proposed that for certain redistributive uses of copyrighted 

works, including mass digitization, licensing disputes be resolved by the CRB through last-best-offer, or 

ȃȰȯɁȳȰȯȺȺʕȄ ȯɀȰȷɂɀȯɂȷȽȼʔ See Ginsburg, Fair Use for Free, supra note 99, at 51-60. Baseball arbitration is 

intended ɂȽ ȃȳȼȱȽɃɀȯȵȳ ȾɀȷɄȯɂȳ ȽɀȲȳɀȷȼȵ ȯȼȲ ȷȼȱȳȼɂȷɄȷɈȳ ɁȳɂɂȺȳȻȳȼɂȄ Ȱɇ ȃɀȳȿɃȷɀȷȼȵ ɂȶȳ ȯɀȰȷɂɀȯɂȽɀ ɂȽ ɁȳȺȳȱɂ 

Ƚȼȳ Ƚȴ ɂɅȽ ȾɀȽȾȽɁȳȲ ȽȴȴȳɀɁʔȄ Id. at 58. While in conventional arbitration the arbitrator has discretion to 

ȃȱȽȻȾɀȽȻȷɁȳʢʣ ȰȳɂɅȳȳȼ ɂȶȳ ȾȯɀɂȷȳɁȂ ȾȽɁȷɂȷȽȼɁ Ƚɀ ȯɅȯɀȲʢʣ ȯ ɃȼȷȿɃȳ ɁȽȺɃɂȷȽȼʕȄ ȰȯɁȳȰȯȺȺ ȯɀȰȷɂɀȯɂȷȽȼ ȃȾɀȽȶȷȰȷɂɁ 

ȯɀȰȷɂɀȯɂȽɀɁ ȴɀȽȻ ȱȽȻȾɀȽȻȷɁȷȼȵ ȰȳɂɅȳȳȼ ȴȷȼȯȺ ȽȴȴȳɀɁʔȄ Elissa M. Meth, Note, Final Offer Arbitration: A Model 

for Dispute Resolution in Domestic and International Disputes, 10 AM. REV. INTȂL ARB. 383, 387 (1999). It thus 

ȃɃɀȵȳɁ ɂȶȳ ȾȯɀɂȷȳɁ ɂȽ ȯɄȽȷȲ ȳɆɂɀȳȻȳɁ Ȱɇ ȱȽȼȴɀȽȼɂȷȼȵ ɂȶȳȻ Ʌȷɂȶ ɂȶȳ ɀȷɁȹ ɂȶȯɂ ɂȶȳ ȯɀȰȷɂɀȯɂȽɀ ɅȷȺȺ ȯȱȱȳȾɂ ɂȶȳ 

Ƚɂȶȳɀ ȾȯɀɂɇȂɁ ȽȴȴȳɀʔȄ Ginsburg, Fair Use for Free, supra note 99, at 58. 

409 See LOV 1961-05-12 nr 02: Lov om opphavsrett til åndsverk m.v. (åndsverkloven) [Act No. 2 of May 12, 

1961 Relating to Copyright in Literary, Scientific and Artistic Works], as amended on Dec. 22, 2006, § 38 

(Nor.), translated at http://www.wipo.int/wipolex/en/text.jsp?file_id=248181 (unofficial translation), last 

amended by LOV-2014-06-13 nr 22 [Act No. 22 of June 13, 2014] (translation unavailable); LAG OM MEDLING I 

VISSA UPPHOVSRÄTTSTVISTER (Svensk författningssamling [SFS] 1980:612) [Act on Mediation in Certain 

Copyright Disputes] (1995) art. 5 (Swed.), translated at 

http://www.wipo.int/wipolex/en/text.jsp?file_id=241666 (unofficial translation), as amended by LAG, May 

26, 2005 (2005:361), translated at http://www.wipo.int/wipolex/en/text.jsp?file_id=129617 (unofficial 

translation), last amended by LAG, June 27, 2013 (2013:690) (translation unavailable). 

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6. Security Measures 

As noted, a major concern expressed by rightsholders during this study was that mass 

ȲȷȵȷɂȷɈȯɂȷȽȼ ȱȽɃȺȲ ȱȯɃɁȳ ȷȼȱȯȺȱɃȺȯȰȺȳ ȲȯȻȯȵȳ ɂȽ ȱȽȾɇɀȷȵȶɂ ȽɅȼȳɀɁȂ ȻȯɀȹȳɂɁ ɃȼȺȳɁɁ ɂȶȳ ȺȯɅ 

provides effective protection against unauthorized access to and dissemination of works in digital 

collections.410 Indeed, as was suggested during the roundtables, the need for reliable security 

measures is one of the strongest justifications for a legislative solution for mass digitization, as 

security is not specifically addressed under the fair use analysis of Section 107.411 The Office thus 

agrees that preventing unauthorized access to the databases subject to ECL is a critical aspect of 

any potential mass digitization solution. At the same time, we are mindful of the consideration 

raised by other commenters that overly restrictive security requirements could undermine the 

ɁɇɁɂȳȻȂɁ ɃɁȳɀ-friendliness and, consequently, its value to the public.412 

As a general matter, we believe that a mass digitization user should be obligated as a 

condition of its license to implement and reasonably maintain adequate security measures to 

control access to its digital collection, and to prevent unauthorized reproduction, distribution, or 

display of the licensed works during and after the scope of the license. The Office therefore 

recommends that the legislation require CMOs and users to incorporate such terms into any 

license issued pursuant to the statute. The Office is seeking additional stakeholder input 

regarding any specific technical measures that should be required as part of this obligation. 

7. Distribution of Royalties 

An authorized CMO should be subject to several requirements to ensure the equitable 

distribution of royalties. First, while a CMO should be permitted to deduct fees from the license 

payments it collects, such deductions should be limited to amounts reasonably necessary to cover 

410 See supra Part III.A. 

411 See Tr. at 144:19-˽˼ ʠMȯɀʔ ˼˼ʕ ˽˻˼˿ʡ ʠJɃȼȳ BȳɁȳȹʕ KȳɀȼȽȱȶȯȼ Cȳȼɂȳɀʡ ʠȃʢTʣȶȳ ȴȯȱɂ ɂȶȯɂ ɂȶȳɇ ȶȯɄȳ ɂȽ ȳȻȾȺȽɇ 

a ɁȳȱɃɀȷɂɇ ȯȾȾȯɀȯɂɃɁ ȷɁ Ʌȶȯɂ ȷɁ ȻȷɁɁȷȼȵ ȷȼ SȳȱɂȷȽȼ ˼˻ȂʔȄʡʔ 

412 See id. at 131:19-˼˾˽ʖ˿ ʠCȽɀɇȼȼȳ MȱSȶȳɀɀɇʕ EȺȳȱɂɀȽȼȷȱ FɀȽȼɂȷȳɀ FȽɃȼȲȯɂȷȽȼʡ ʠȃIȴ Ʌȳ ɀȳȿɃȷɀȳʕ ɁȽȻȳȶȽɅʕ ɂȶȯɂ 

any database comes wrapped in some kind of technological protection measure, we are all automatically 

going to make it less usable, less user friendly. We are going to undermine ourselves from the get-go and 

undermine the public interest from the get-ȵȽʔȄʡʗ id. at 148:2-7 (Michael W. Carroll, American 

UȼȷɄȳɀɁȷɂɇ/CɀȳȯɂȷɄȳ CȽȻȻȽȼɁ USAʡ ʠȃʢJʣɃɁɂ be careful about how onerous you think about making this 

because otherwise, it becomes the TEACH Act, which I think would be an unfortunate result, where you 

are targeting the law-ȯȰȷȲȷȼȵ ȷȼɁɂȷɂɃɂȷȽȼɁʔȄʡʔ 

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specified operational costs.413 We recommend that the legislation provide restrictions similar to 

those currently applicable to the agent designated to distribute royalties under the statutory 

licenses of Sections 112 and 114.414 Prior to distribution, a CMO would be permitted to deduct 

from its receipts the reasonable costs incurred in connection with (1) the administration, 

distribution, and calculation of the royalties; (2) the settlement of disputes relating to the 

collection and calculation of the royalties; and (3) the licensing and enforcement of rights subject 

to ECL, including those incurred in participating in negotiations or dispute resolution 

proceedings. 

Second, the legislation should establish a specific time period within which a CMO must 

distribute royalties to rightsholders whom it has identified and located. The February 2014 EU 

Directive on Collective Management of Copyright and Related Rights (EU CMO Directive) 

mandates that such paɇȻȳȼɂɁ Ȱȳ ȻȯȲȳ ȃȯɁ ɁȽȽȼ ȯɁ ȾȽɁɁȷȰȺȳ ȰɃɂ ȼȽ Ⱥȯɂȳɀ ɂȶȯȼ ȼȷȼȳ ȻȽȼɂȶɁ ȴɀȽȻ 

ɂȶȳ ȳȼȲ Ƚȴ ɂȶȳ ȴȷȼȯȼȱȷȯȺ ɇȳȯɀ ȷȼ Ʌȶȷȱȶ ɂȶȳ ɀȷȵȶɂɁ ɀȳɄȳȼɃȳ ɅȯɁ ȱȽȺȺȳȱɂȳȲʕȄ ɃȼȺȳɁɁ ȱȳɀɂȯȷȼ ȳɆȱȳȾɂȷȽȼɁ 

apply.415 The U.K. ECL regulations adopt that same timeframe for distributions to non-CMO 

member rightsholders.416 In the United States, there is some industry precedent for distributions 

by CMOs on a quarterly basis.417 The Office invites public comment on what distribution 

schedule would be appropriate for the proposed ECL pilot. 

Third, a CMO should be required to conduct diligent searches for non-member 

rightsholders for whom it has collected royalties. The Office believes that this obligation should 

413 Cf. Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on 

Collective Management of Copyright and Related Rights and Multi-Territorial Licensing of Rights in 

Musical Works for Online Use in the Internal Market, art. 12, 2014 O.J. (L 84) 72, 87, available at http://eurlex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32014L0026&from=EN; U.K. ECL Regulations, S.I. 

2014/2588, art. 18, ¶¶ 1-2. 

414 See 17 U.S.C. § 114(g)(3). 

415 Directive 2014/26/EU art. 13(1). 

416 U.K. ECL Regulations, S.I. 2014/2588, art. 18, ¶ 3. Member rightsholders presumably are free to negotiate 

a different payment schedule with the CMO. 

417 See, e.g., Copyright Clearance Center, Royalty Payment Schedule (2014), available at 

http://www.copyright.com/wp-content/uploads/2015/03/Royaltypaymentschedule.pdf; General FAQ, 

SOUNDEXCHANGE, http://www.soundexchange.com/about/general-faq/. 

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include, but not be limited to, maintaining a publicly available list of information on all licensed 

works for which one or more rightsholders have not been identified or located.418 

Some commenters argued that a diligent-search obligation would create a potential 

ȱȽȼȴȺȷȱɂ Ƚȴ ȷȼɂȳɀȳɁɂ ȴȽɀ CMOɁʔ Iȼ ɂȶȳȷɀ ɄȷȳɅʕ CMOɁ ȃthat would otherwise retain unallocated 

funds for their own uses . . . would be incentivized to conduct a less thorough search for 

ȼȽȼȻȳȻȰȳɀɁʔȄ419 To address that concern, both the EU CMO Directive and the U.K. regulations 

require the transfer of any undistributed royalties to a separate account nine months after the end 

of the financial year of their collection.420 After a specified period of years, any royalties 

ɀȳȻȯȷȼȷȼȵ ɃȼȱȺȯȷȻȳȲ Ȼȯɇ Ȱȳ ɃɁȳȲ ȃɂȽ ȴɃȼȲ ɁȽȱȷȯȺʕ ȱɃȺɂɃɀȯȺ ȯȼȲ ȳȲɃȱȯɂȷȽȼȯȺ ȯȱɂȷɄȷɂȷȳɁȄ ȴȽɀ ɂȶȳ 

benefit of rightsholders.421 The Office recommends that a U.S. ECL law include analogous 

requirements. Where a CMO has failed to identify or locate a rightsholder owed royalties by the 

statutory distribution date, it should be required to transfer those funds to a segregated trust 

account.422 If the funds remained unclaimed after three years, the CMO would be permitted to 

deduct a reasonable fee to defray costs incurred in identifying and locating non-member 

rightsholders, and then would be required to distribute the balance to educational or literacybased charities selected by its membership. These requirements would apply notwithstanding 

any provisions of state law, including those pertaining to unclaimed property.423 

418 Cf. Directive 2014/26/EU art. 13(3); U.K. ECL Regulations, S.I. 2014/2588, art. 18, ¶ 5. 

419 Berkeley Digital Library Copyright Project Initial Comments at 30; see also MIT Libraries Additional 

Comments at 4. 

420 Directive 2014/26/EU art. 13(2); U.K. ECL Regulations, S.I. 2014/2588, art. 18, ¶ 3. 

421 Directive 2014/26/EU art. 13(6); U.K. ECL Regulations, S.I. 2014/2588, art. 19, ¶ 3. Under the Directive, 

member states may direct such transfers after three years from the end of the financial year in which the 

funds were collected. Directive 2014/26/EU art. 13(4). In the U.K., title passes to the Secretary of State after 

three years from the end of the financial year of collection. U.K. ECL Regulations, S.I. 2014/2588, art. 19, ¶ 1. 

The Secretary ȃȻȯɇ ȳȷɂȶȳɀ ȶȽȺȲ ɂȶȳɁȳ ȻȽȼȷȳɁ Ƚȼ ȲȳȾȽɁȷɂ Ƚɀ Ȳȷɀȳȱɂ ȯ ȱȽȺȺȳȱɂȷȼȵ ɁȽȱȷȳɂɇ ɂȽ ɀȳɂȯȷȼ ɂȶȳɁȳ ȴɃȼȲɁ ʔ ʔ 

ʔ ȴȽɀ ȯȼɇ ȾȳɀȷȽȲ ɃȾ ɂȽ ȃ ɇȳȯɀɁ ȴɀȽȻ Ʌȶȳȼ ɂȶȳ ECL ȯɃɂȶȽɀȷɁȯɂȷȽȼ ȰȳȵȯȼʔȄ U.K. GOVERNMENT RESPONSE, supra 

ȼȽɂȳ ˼˽ȁʕ ȯɂ ˿˻ʔ Tȶȳɀȳȯȴɂȳɀʕ ɂȶȳ Sȳȱɀȳɂȯɀɇ ȃȻȯɇ ȲȳɂȳɀȻȷȼȳ Ʌȶȯɂ ȶȯȾȾȳȼɁ ɂȽ ɂȶȳɁȳ ȻȽȼȷȳɁʕ ȷȼȱȺɃȲȷȼȵ ɂȶȯɂ 

ɂȶȳɇ Ȱȳ ɃɁȳȲ ȴȽɀ ɁȽȱȷȯȺ ȯȼȲ ȱɃȺɂɃɀȯȺ ȾɃɀȾȽɁȳɁʔȄ Id. 

422 Cf. 37 C.F.R. § 380.8 (in case of unclaimed royalties collected under statutory licenses for ephemeral 

ɀȳȱȽɀȲȷȼȵɁ ȯȼȲ ȲȷȵȷɂȯȺ ȯɃȲȷȽ ɂɀȯȼɁȻȷɁɁȷȽȼɁʕ ȃɂȶȳ CȽȺȺȳȱɂȷɄȳ ɁȶȯȺȺ ɀȳɂȯȷȼ ɂȶȳ ɀȳȿɃȷɀȳȲ ȾȯɇȻȳȼɂ ȷȼ ȯ 

ɁȳȵɀȳȵȯɂȳȲ ɂɀɃɁɂ ȯȱȱȽɃȼɂ ȴȽɀ ȯ ȾȳɀȷȽȲ Ƚȴ ˾ ɇȳȯɀɁ ȴɀȽȻ ɂȶȳ Ȳȯɂȳ Ƚȴ ȲȷɁɂɀȷȰɃɂȷȽȼȄʡʔ 

423 Cf. id. 

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8. Fair Use Savings Clause 

A number of commenters expressed opposition to ECL on the theory that it would 

weaken the fair use doctrine by inducing users whose activities might be protected by fair use to 

pay license fees rather than risk litigation.424 The Office understands these concerns, but 

ultimately finds them overstated. As discussed above, our proposed ECL solution is intended in 

large part to enable activity for which there is broad agreement that no colorable fair use claim 

exists: providing digital access to copyrighted works in their entirety. To the extent it could be 

argued that any individual aspect of a mass digitization project might by itself qualify as fair use 

(e.g., the underlying digital copying), we would expect that view to be reflected in the overall 

license fee negotiated between the CMO and the user. That is, where the parties agree that a 

particular use would likely be deemed fair under established law, the portion of the license fee 

pertaining to that activity would likely be at or near zero. 

More fundamentally, the Office notes that providing certainty to users through specific 

copyright limitations is fully compatible with fair use. Indeed, as one group of commenters 

ȱȽȼȱȳɀȼȳȲ ȯȰȽɃɂ ECLȂɁ ȾȽɂȳȼɂȷȯȺ ȳȴȴȳȱɂ Ƚȼ ȴȯȷɀ ɃɁȳ ȯȱȹȼȽɅȺȳȲȵȳȲ ȷȼ ɂȶȳ ȱȽȼɂȳɆɂ Ƚȴ ɂȶȳ SȳȱɂȷȽȼ ˼˻ȃ 

ȺȷȰɀȯɀɇ ȳɆȱȳȾɂȷȽȼɁʕ ȃɂȶȳɀȳ ȷs . . . real value in establishing that certain uses are categorically 

ȴȯɄȽɀȳȲ ȯȼȲ ȯɃɂȶȽɀȷɈȳȲ ɅȷɂȶȽɃɂ ɀȳȵȯɀȲ ɂȽ ɂȶȳ ȴȯȷɀ ɃɁȳ ȰȯȺȯȼȱȷȼȵ ɂȳɁɂʔȄ425 For many mass 

digitization users – particularly non-state actors with limited resources – the avoidance of 

exposure to federal litigation and infringement liability will be well worth the cost of a license. 

Yet those making a different risk/reward calculation would be free to forego a license and assert 

the fair use defense in the event litigation arose. To confirm this understanding, the Office 

recommends that the legislation include a savings clause providing that nothing in the statute is 

intended to affect the scope of fair use.426 

424 See, e.g., Butler et al. Additional Comments at ˼˼ ʠȃʢFʣȯȷɀ ɃɁȳ can be shrunk in practice by offering 

ȯȾȾȯɀȳȼɂ ȱȳɀɂȯȷȼɂɇ ȷȼ ȳɆȱȶȯȼȵȳ ȴȽɀ ȻȽɀȳ ȱȽȼɁȳɀɄȯɂȷɄȳ ȾɀȯȱɂȷȱȳʔȄʡʗ PɃȰȺȷȱ KȼȽɅȺȳȲȵȳ ȯȼȲ EȺȳȱɂɀȽȼȷȱ FɀȽȼɂȷȳɀ 

FȽɃȼȲȯɂȷȽȼʕ CȽȻȻȳȼɂɁ SɃȰȻȷɂɂȳȲ ȷȼ RȳɁȾȽȼɁȳ ɂȽ UʔSʔ CȽȾɇɀȷȵȶɂ OȴȴȷȱȳȂɁ FȳȰʔ ˼˻ʕ ˽˻˼˿ NȽɂȷȱȳ Ƚȴ Inquiry at 

˾ ʠMȯɇ ˽˼ʕ ˽˻˼˿ʡ ʠȃNȯɂɃɀȯȺȺɇ ɀȷɁȹ-averse parties making fair uses of orphan works would in many cases pay 

ȴȽɀ ȺȷȱȳȼɁȳɁ ȯȼɇɅȯɇʕ Ʌȶȷȱȶ ɅȽɃȺȲ ɃȺɂȷȻȯɂȳȺɇ ȲȳȵɀȯȲȳ ɂȶȳ ȾȳɀȱȳȷɄȳȲ ɀȽȰɃɁɂȼȳɁɁ Ƚȴ ȴȯȷɀ ɃɁȳʔȄʡʗ Tɀʔ ȯɂ ˼Ȅ˻ʖ˽˻­

192:18 (Mar. 11, 2014) (Brandon Butler, American University Washington College of Law). 

425 Butler et al. Additional Comments at 7. 

426 Cf. ˼Ȃ UʔSʔCʔ § ˼˻ȃʠȴʡʠ˿ʡ ʠȃNȽɂȶȷȼȵ ȷȼ ɂȶȷɁ ɁȳȱɂȷȽȼ ʔ ʔ ʔ ȷȼ ȯȼɇ Ʌȯɇ ȯȴȴȳȱɂɁ ɂȶȳ ɀȷȵȶɂ Ƚȴ ȴȯȷɀ ɃɁȳ ȯɁ ȾɀȽɄȷȲȳȲ 

Ȱɇ ɁȳȱɂȷȽȼ ˼˻Ȃ ʔ ʔ ʔ ʔȄʡʔ 

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9. Sunset 

The Office recommends that the legislation include a five-year sunset clause to give 

CȽȼȵɀȳɁɁ ɂȶȳ ȽȾȾȽɀɂɃȼȷɂɇ ɂȽ ȯɁɁȳɁɁ ɂȶȳ ȾɀȽȵɀȯȻȂɁ ȳȴȴȳȱɂȷɄȳȼȳɁɁ and to consider whether ECL 

should be implemented on a long-term or permanent basisʔ A CMOȂɁ ȽȰȺȷȵȯɂȷȽȼɁ ɀȳȵȯɀȲȷȼȵ ɂȶȳ 

maintenance and disposition of unclaimed royalties would extend beyond the sunset date until 

all such monies were disbursed. 

10. Treaty Considerations 

Insofar as an ECL system would establish a new limitation or exception to the rights of 

copyright owners, Congress would need to be satisfied that it complies with the requirements of 

international treaties to which the United States is a party. The Berne Convention, the TRIPS 

Agreement, the WIPO Copyright Treaty, and the WIPO Performances and Phonograms Treaty all 

require that any limitation or exception meet a variant of the so-ȱȯȺȺȳȲ ȃɂȶɀȳȳ-ɁɂȳȾ ɂȳɁɂȄʖ ʠ˼ʡ ȷɂ 

must be confined to certain special cases that (2) do not conflict with a normal exploitation of the 

work and (3) do not unreasonably prejudice the legitimate interests of the rightsholder.427 

Decisions issued by World Trade Organization (ȃWTOȄ) dispute resolution panels have 

provided some guidance as to the interpretation and application of the three-step test.428 The first 

step – that a limitation or exception be confined to certain special cases – has been construed to 

require that the prȽɄȷɁȷȽȼ Ȱȳ ȃȱȺȳȯɀȺɇ ȲȳȴȷȼȳȲ ȷȼ ȼȯɂȷȽȼȯȺ ȺȳȵȷɁȺȯɂȷȽȼ ȯȼȲ ȼȯɀɀȽɅ ȷȼ ɁȱȽȾȳ and 

ɀȳȯȱȶ ʠȷʔȳʔ ȳɁɁȳȼɂȷȯȺȺɇ ɂȶȳ ȲȷȱɂȷȽȼȯɀɇ ȻȳȯȼȷȼȵɁ Ƚȴ ʦȱȳɀɂȯȷȼȂ ȯȼȲ ʦɁȾȳȱȷȯȺȂʡʔȄ429 FȽɀ ɂȶȳɁȳ ȾɃɀȾȽɁȳɁʕ ȃȷɂ 

is the scope in respect of potential users that is relevant for determining whether the coverage of 

ɂȶȳ ȳɆȳȻȾɂȷȽȼ ȷɁ ɁɃȴȴȷȱȷȳȼɂȺɇ ȺȷȻȷɂȳȲ ɂȽ ȿɃȯȺȷȴɇ ȯɁ ȯ ʦȱȳɀɂȯȷȼ special ȱȯɁȳʔȂȄ430 In our view, an ECL 

law drawn in the manner described here should meet this requirement, as the class of potential 

users would be limited to those undertaking mass digitization activities for nonprofit educational 

427 See WCT, supra note 16, art. 10; WPPT, supra note 16, art. 16; TRIPS Agreement, supra note 16, art. 13; 

Berne Convention, supra note 16, art. 9(2). 

428 See Panel Report, United States – Section 110(5) of the US Copyright Act: Report of the Panel, WT/DS160/R 

ʠJɃȼȳ ˼Ȁʕ ˽˻˻˻ʡ ʠȃWTO CȽȾɇɀȷȵȶɂ PȯȼȳȺ RȳȾȽɀɂȄʡ ʠȯȾȾȺɇȷȼȵ ɂȶɀȳȳ-step test as set forth in TRIPS Agreement 

in copyright context); Panel Report, Canada – Patent Protection of Pharmaceutical Products, WT/DS114/R (Mar. 

17, 2000) (applying TRIPS three-step test in patent context). 

429 DANIEL GERVAIS, THE TRIPS AGREEMENT: DRAFTING HISTORY AND ANALYSIS ¶ 2.191, at 289 (4th ed. 2012); 

see WTO Copyright Panel Report, supra note 428, ¶ 6.112, at 34. 

430 WTO Copyright Panel Report, supra note 428, ¶ 6.127, at 37. 

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or research purposes. It thus would exclude large numbers of would-be users seeking to make 

digital collections available commercially or for purposes unrelated to education or research. 

Under the second step – no conflict with a normal exploitation of the work – a limitation 

or exception ȷɁ ȾɀȽȶȷȰȷɂȳȲ ȷȴ ȷɂ ȃȷɁ ɃɁȳȲ ɂȽ ȺȷȻȷɂ ȯ ȱȽȻȻȳɀȱȷȯȺȺɇ Ɂȷȵȼȷȴȷȱȯȼɂ Ȼȯɀȹȳɂ Ƚɀ ʔ ʔ ʔ ɂȽ ȳȼɂȳɀ 

ȷȼɂȽ ȱȽȻȾȳɂȷɂȷȽȼ Ʌȷɂȶ ɂȶȳ ȱȽȾɇɀȷȵȶɂ ȶȽȺȲȳɀʔȄ431 Here again, we believe the safeguards proposed 

above should minimize any such conflicts. The requirement that a CMO demonstrate its 

ɀȳȾɀȳɁȳȼɂȯɂȷɄȳȼȳɁɁ ȷȼ ɂȶȳ ȴȷȳȺȲ ȯȼȲ ɂȶȳ ȱȽȼɁȳȼɂ Ƚȴ ȷɂɁ ȻȳȻȰȳɀɁȶȷȾ ɅȽɃȺȲ ȃȳȼɁɃɀȳʢʣ ɂȶȯɂ ȯȼɇ 

ȺȷȻȷɂȯɂȷȽȼ ȷȻȾȽɁȳȲ Ƚȼ ȽɃɂɁȷȲȳɀɁȂ ɀȷȵȶɂɁ ʢɅȷȺȺ ȶȯɄȳʣ Ȱȳȳȼ ȯȾȾɀȽɄȳȲ Ȱɇ ȯ ʦɁɃȰɁɂȯȼɂȷȯȺȂ ȼɃȻȰȳɀ Ƚȴ 

ȯɃɂȶȽɀɁ Ƚȴ ɅȽɀȹɁ Ƚȴ ɂȶȳ ɁȯȻȳ ȱȯɂȳȵȽɀɇʔȄ432 TȶȳɀȳȴȽɀȳʕ ȃɂȶȳ ȺȷȻȷɂȯɂȷȽȼ ȷȻȾȽɁȳȲ ɂȶɀȽɃȵȶ ɂȶȳ ECL 

agreements is only an obligation on them to exploit their work in a manner that a substantial 

number of authors have fouȼȲ ɂȽ Ȱȳ ȯ ʦȼȽɀȻȯȺ ȳɆȾȺȽȷɂȯɂȷȽȼȂ Ƚȴ ɂȶȳȷɀ ȽɅȼ ɅȽɀȹɁʔȄ433 To the extent 

that any non-member rightsholder disagreed, he or she would be entitled to opt out. 

The third step – no unreasonable prejudice to the legitimate interests of the rightsholder – 

is implicated where a limitation or exception ȃȱȯɃɁȳɁ Ƚɀ ȶȯɁ ɂȶȳ ȾȽɂȳȼɂȷȯȺ ɂȽ ȱȯɃɁȳ ȯȼ 

ɃȼɀȳȯɁȽȼȯȰȺȳ ȺȽɁɁ Ƚȴ ȷȼȱȽȻȳ ɂȽ ɂȶȳ ȱȽȾɇɀȷȵȶɂ ȽɅȼȳɀʔȄ434 It seems highly unlikely that the ECL 

framework described here would be found to have that effect. ECL programs typically are more 

ȾɀȽɂȳȱɂȷɄȳ Ƚȴ ɀȷȵȶɂɁȶȽȺȲȳɀɁȂ ȳȱȽȼȽȻȷȱ ȷȼɂȳɀȳɁɂɁ ɂȶȯȼ ȯɀȳ ɁɂȯɂɃɂȽɀɇ ȺȷȱȳȼɁȷȼȵ ɁȱȶȳȻȳɁʕ ȯɁ ECL 

royalty terms and rates are negotiated between representatives of owners and users, rather than 

imposed by the government.435 As stated, the Copyright OȴȴȷȱȳȂɁ proposal would provide still 

further protection by giving non-members the right to opt out of any license they consider 

unfavorable. 

More generally, the fact that ECL regimes have existed in several Nordic countries for 

decades without ever being challenged on these grounds would seem to belie any suggestion that 

a properly crafted ECL system in the United States would conflict with international norms. That 

ȱȽȼȱȺɃɁȷȽȼ ȷɁ ȰȽȺɁɂȳɀȳȲ Ȱɇ Ƚɂȶȳɀ ȱȽɃȼɂɀȷȳɁȂ ɀȳȱȳȼɂ ȯȲȽȾɂȷȽȼ Ƚȴ ECL ȺȯɅɁ – one of which (the 

431 GERVAIS, supra note 429, ¶ 2.184, at 282. 

432 AXHAMN & GUIBAULT, supra note 62, at 51. 

433 Id. 

434 WTO Copyright Panel Report, supra note 428, ¶ 6.229. 

435 See AXHAMN & GUIBAULT, supra ȼȽɂȳ ȁ˽ʕ ȯɂ Ȁ˼ ʠȃʢIʣɂ ȷɁ ɀȳȯɁȽȼȯȰȺȳ ɂȽ ȯɁɁɃȻȳ ɂȶȯɂ ɁɇɁɂȳȻɁ ɂȶȯɂ ȵɀȯȼɂ 

authors the possibility to influence the limitatioȼȂɁ ɁȱȽȾȳ Ƚɀ ȴɃȼȱɂȷȽȼ ȱȯȼ Ȱȳ ȾɀȳɁɃȻȳȲ ɂȽ Ȱȳ ȺȳɁɁ ȾɀȳȸɃȲȷȱȷȯȺ 

ɂȶȯȼ ȺȷȻȷɂȯɂȷȽȼɁ ȼȽɂ ȵɀȯȼɂȷȼȵ ɂȶȷɁ ȽȾȾȽɀɂɃȼȷɂɇʔȄʡʔ 

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U.S. Copyright Office Orphan Works and Mass Digitization 

UȼȷɂȳȲ KȷȼȵȲȽȻȂɁʡ ȷɁ ȰɀȽȯȲȳɀ ȷȼ ɁȱȽȾȳ ɂȶȯȼ ɂȶȯɂ ȲȳɁȱɀȷȰȳȲ ȶȳɀȳʔ The Office accordingly 

concludes ɂȶȯɂ ȱȽȻȾȺȷȯȼȱȳ Ʌȷɂȶ ɂȶȳ UȼȷɂȳȲ SɂȯɂȳɁȂ ɂɀȳȯɂɇ ȽȰȺȷȵȯɂȷȽȼɁ ɅȽɃȺȲ ȼȽɂ ȾɀȳȱȺɃȲȳ ɂȶȳ 

adoption of an appropriately tailored ECL program. 

11. Notice of Inquiry 

To assist it in developing legislation within these general parameters, the Office is 

publishing a Notice of Inquiry inviting public comment on the outstanding issues discussed 

above. The Office is particularly interested in stakeholder views regarding examples of mass 

digitization projects that may be appropriate for licensing under the proposed pilot. These 

comments may include (but need not be limited to) descriptions of particular collections of 

copyrighted works (e.g., Depression-era photographs) that prospective users may wish to digitize 

and make available through ECL. The Office believes that information about the types of mass 

digitization projects that users have the desire and capacity to undertake will provide a useful 

starting point for stakeholder dialogue on various elements of the pilot program. 

12. Summary 

Based on the above analysis, the Copyright Office believes that the copyright law would 

benefit from the addition of an ECL framework to facilitate certain mass digitization projects in a 

manner that meets the overall objectives of an effective and balanced Copyright Act. The Office 

recommends, as a first step, a pilot program on which it will seek further public comment. 

An ECL regime in the United States would allow the Register of Copyrights to authorize 

CMOs to license the use of copyrighted works on behalf of both members and non-members in 

connection with the creation or operation of a digital collection. Three categories of published 

works would be eligible for ECL: (1) literary works, (2) pictorial or graphic works embedded in 

such works, and (3) photographs. At least with respect to out-of-commerce works, an authorized 

CMO would be permitted to license the creation of digital copies, the display of works through 

online access, and copying and printing, subject to restrictions on eligible end-users and methods 

of access. If in-commerce works are covered, a substantially narrower range of permitted uses 

may be advisable for those works. The legislation would not limit the categories of users eligible 

to obtain a license, but would require that the uses be made only for nonprofit educational or 

research purposes and without any purpose of direct or indirect commercial advantage. 

To qualify for licensing authority, a CMO would be required to submit an application 

providing evidence of its representativeness in the relevant field, the consent of its membership to 

the ECL proposal, and its adherence to sufficient standards of transparency, accountability, and 

good governance. After receiving ECL authorization, a CMO would be subject to rightsholder 

104
 
 

 

 

 

 

 

 

 

 

 

U.S. Copyright Office Orphan Works and Mass Digitization 

audits. Copyright owners would have the right to limit the grant of licenses with respect to their 

works or to opt out of the system altogether. 

Royalty rates and license terms would be negotiated between the CMO and a prospective 

user, subject to a CRB dispute resolution process. All licenses would include provisions 

obligating the user to implement and maintain reasonable digital security measures. The CMO 

would be required to collect and distribute royalties to rightsholders within a prescribed period 

and to conduct diligent searches for non-members for whom it has collected payments. 

Unclaimed royalties would have to be maintained by the CMO in a designated account for three 

years, after which time they would be distributed to educational or literacy-based charities 

selected by its membership. The legislation would include a fair use savings clause. 

The success of such a system would depend on the viability of the market for the digital 

resources available for licensing. A sufficient number of prospective users would have to 

conclude that the benefits obtainable through ECL – including legal certainty and broader 

permitted uses – are greater than the costs of securing a license. Likewise, for CMOs, the benefits 

of administering extended collective licenses must exceed the additional administrative burdens 

ɂȶȯɂ ȯɃɂȶȽɀȷɈȯɂȷȽȼ ɅȽɃȺȲ ȼȳȱȳɁɁȯɀȷȺɇ ȳȼɂȯȷȺʔ AɁ ɂȶȳ UʔKʔ IPO ȶȯɁ ȽȰɁȳɀɄȳȲʕ ȃECL ɁȱȶȳȻȳɁ ɅȷȺȺ 

only be possible where the market wants themʔȄ436 

IV. CONCLUSION 

Both the use of individual orphan works and mass digitization offer considerable 

opportunities for the diffusion of creativity and learning. Too often, however, the public is 

deprived of the full benefit of such uses, not because rightsholders and users cannot agree to 

terms, but because a lack of information or inefficiencies in the licensing process prevent such 

negotiations from occurring in the first place. As countries around the world are increasingly 

recognizing, these obstacles to clearance are highly detrimental to a well-functioning copyright 

system in the twenty-first century. The Office thus agrees that a solution for the United States is 

ȃȲȳɁȾȳɀȯɂȳȺɇ ȼȳȳȲʢȳȲʣʕȄ437 though the two issues warrant different responses. 

For orphan works, the Office recommends the adoption of a modified version of the 2008 

Shawn Bentley Act that would limit the infringement remedies available against a user who has 

undertaken a good faith diligent search for the rightsholder and completed certain notice and 

436 U.K. GOVERNMENT RESPONSE, supra note 126, at 1. 

437 Preservation and Reuse of Copyrighted Works, supra note 2, at 81 (statement of Michael C. Donaldson, IntȂl 

DȽȱɃȻȳȼɂȯɀɇ AɁɁȂȼ ȯȼȲ FȷȺȻ IȼȲȳȾȳȼȲȳȼɂʡʔ 

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U.S. Copyright Office Orphan Works and Mass Digitization 

attribution requirements. For mass digitization, a comprehensive solution likely would require 

legislation establishing an ECL option, which we believe should initially take the form of a 

limited pilot program developed through additional stakeholder outreach and discussion. 

Should Congress wish to consider an ECL model, we recommend that any legislation follow the 

general framework described here – notably, that it be limited, at least at the outset, to projects 

serving nonprofit educational and research purposes and that it provide an express opt-out right 

for copyright owners. Ultimately, the Office concludes that legislation addressing both orphan 

works and mass digitization could do much to further the objectives of the copyright system by 

providing legal certainty to users, establishing reliable mechanisms for the compensation of 

authors, and making vast numbers of long forgotten works available for the public good. 

106
 
orphan works and mass digitization

u.s. copyright office

appendix a	 orphan works legislation 

discussion draft and 

section-by-section analysis 
 

 

 

 

 

Orphan Works Act of 20__ 

__th CONGRESS 

__ Session 

AN ACT 

To provide a limitation on judicial remedies in copyright infringement cases involving 

orphan works. 

Be it enacted by the Senate and House of Representatives of the United States of America in 

Congress assembled, 

SECTION 1. SHORT TITLE. 

This Act may be cited as the “Orphan Works Act of 20__”. 

SEC. 2. LIMITATION ON REMEDIES IN CASES INVOLVING ORPHAN 

WORKS. 

(a) LIMITATION ON REMEDIES.—Chapter 5 of title 17, United States Code, is 

amended by adding at the end the following: 

Sec. 514. Limitation on remedies in cases involving orphan works 

(a) DEFINITIONS.—In this section, the following definitions shall apply: 

(1) NOTICE OF CLAIM OF INFRINGEMENT.—The term “notice of claim of 

infringement” means, with respect to a claim of copyright infringement, a 

written notice sent from the owner of the infringed copyright or a person 

acting on the owner’s behalf to the infringer or a person acting on the 

infringer’s behalf, that includes at a minimum— 

(A) the name of the owner of the infringed copyright; 

(B) the title of the infringed work, any alternative titles of the 

infringed work known to the owner of the infringed copyright, or if 

the work has no title, a description in detail sufficient to identify 

that work; 

(C) an address and telephone number at which the owner of the 

infringed copyright or a person acting on behalf of the owner may 

be contacted; and 

(D) information reasonably sufficient to permit the infringer to 

locate the infringer’s material in which the infringed work resides. 

(2) OWNER OF THE INFRINGED COPYRIGHT.—The “owner of the infringed 

copyright” is the owner of any particular exclusive right under section 106 

that is applicable to the infringement, or any person or entity with the 

authority to grant or license such right. 

(3) REASONABLE COMPENSATION.—The term “reasonable compensation” 

means, with respect to a claim of infringement, the amount on which a 

willing buyer and willing seller in the positions of the infringer and the 

owner of the infringed copyright would have agreed with respect to the 

infringing use of the work immediately before the infringement began. 

(b) CONDITIONS FOR ELIGIBILITY.— 

(1) CONDITIONS.— 

1
 
 

 

 

(A) IN GENERAL.—Notwithstanding sections 502 through 506, and 

subject to subparagraph (B), in an action brought under this title 

for infringement of copyright in a work, the remedies for 

infringement shall be limited in accordance with subsection (c) if 

the infringer— 

(i) proves by a preponderance of the evidence that before 

the infringement began, the infringer, a person acting on 

behalf of the infringer, or any person jointly and severally 

liable with the infringer for the infringement— 

(I) performed and documented a qualifying search, 

in good faith, to locate and identify the owner of the 

infringed copyright; and 

(II) was unable to locate and identify an owner of 

the infringed copyright; 

(ii) prior to using the work, filed with the Register of 

Copyrights a Notice of Use under paragraph (3); 

(iii) provided attribution, in a manner that is reasonable 

under the circumstances, to the legal owner of the infringed 

copyright, if such legal owner was known with a reasonable 

degree of certainty, based on information obtained in 

performing the qualifying search; 

(iv) included with the public distribution, display, or 

performance of the infringing work a symbol or other 

notice of the use of the infringing work, the form and 

manner of which shall be prescribed by the Register of 

Copyrights; 

(v) asserts in the initial pleading to the civil action 

eligibility for such limitations; and 

(vi) at the time of making the initial discovery disclosures 

required under rule 26 of the Federal Rules of Civil 

Procedure, states with particularity the basis for eligibility 

for the limitations, including a detailed description and 

documentation of the search undertaken in accordance with 

paragraph (2)(A) and produces documentation of the search. 

(B) EXCEPTION.—Subparagraph (A) does not apply if, after 

receiving notice of the claim for infringement and having an 

opportunity to conduct an expeditious good faith investigation of 

the claim, the infringer— 

(i) fails to negotiate reasonable compensation in good faith 

with the owner of the infringed copyright; or 

(ii) fails to render payment of reasonable compensation in a 

reasonably timely manner after reaching an agreement with 

the owner of the infringed copyright or under an order 

described in subsection (c)(1)(A). 

(2) REQUIREMENTS FOR SEARCHES.— 

(A) REQUIREMENTS FOR QUALIFYING SEARCHES.— 

2
 
 

 

 

(i) IN GENERAL.—A search qualifies under paragraph 

(1)(A)(i)(I) if the infringer, a person acting on behalf of the 

infringer, or any person jointly and severally liable with the 

infringer for the infringement, undertakes a diligent effort 

that is reasonable under the circumstances to locate the 

owner of the infringed copyright prior to, and at a time 

reasonably proximate to, the infringement. 

(ii) DILIGENT EFFORT.—For purposes of clause (i), a 

diligent effort— 

(I) requires, at a minimum— 

(aa) a search of the records of the Copyright 

Office that are available to the public 

through the Internet and relevant to 

identifying and locating copyright owners, 

provided there is sufficient identifying 

information on which to construct a search; 

(bb) a search of reasonably available sources 

of copyright authorship and ownership 

information and, where appropriate, licensor 

information; 

(cc) use of appropriate technology tools, 

printed publications, and where reasonable, 

internal or external expert assistance; and 

(dd) use of appropriate databases, including 

databases that are available to the public 

through the Internet; and 

(II) shall include any actions that are reasonable and 

appropriate under the facts relevant to the search, 

including actions based on facts known at the start 

of the search and facts uncovered during the search, 

and including a review, as appropriate, of Copyright 

Office records not available to the public through 

the Internet that are reasonably likely to be useful in 

identifying and locating the copyright owner. 

(iii) CONSIDERATION OF RECOMMENDED PRACTICES.—A 

qualifying search under this subsection shall ordinarily be 

based on the applicable statement of Recommended 

Practices made available by the Copyright Office. 

(iv) LACK OF IDENTIFYING INFORMATION.—The fact that, in 

any given situation,— 

(I) a particular copy or phonorecord lacks 

identifying information pertaining to the owner of 

the infringed copyright; or 

(II) an owner of the infringed copyright fails to 

respond to any inquiry or other communication 

3
 
 

 

 

 

 

 

about the work, shall not be deemed sufficient to 

meet the conditions under paragraph (1)(A)(i)(I). 

(v) USE OF RESOURCES FOR CHARGE.—A qualifying search 

under paragraph (1)(A)(i)(I) may require use of resources 

for which a charge or subscription is imposed to the extent 

reasonable under the circumstances. 

(vi) EFFECT OF FOREIGN SEARCHES.—If a search is found to 

be qualifying under the laws of a foreign jurisdiction, and 

this search is relied upon in part by a U.S. infringer, a court 

may take this fact into account when determining whether 

the U.S. search is qualifying, provided the foreign 

jurisdiction accepts qualifying U.S. searches in a reciprocal 

manner. 

(B) INFORMATION TO GUIDE SEARCHES; RECOMMENDED 

PRACTICES.— 

(i) STATEMENTS OF RECOMMENDED PRACTICES.—The 

Register of Copyrights shall maintain and make available to 

the public and, from time to time, update at least one 

statement of Recommended Practices for each category, or, 

in the Register’s discretion, subcategory of work under 

section 102(a) of this title, for conducting and documenting 

a search under this subsection. Such statement will 

ordinarily include reference to materials, resources, 

databases, and technology tools that are relevant to a search. 

The Register may maintain and make available more than 

one statement of Recommended Practices for each category 

or subcategory, as appropriate. 

(ii) CONSIDERATION OF RELEVANT MATERIALS.—In 

maintaining and making available and, from time to time, 

updating the Recommended Practices in clause (i), the 

Register of Copyrights shall, at the Register’s discretion, 

consider materials, resources, databases, technology tools, 

and practices that are reasonable and relevant to the 

qualifying search. The Register may consider any 

comments submitted to the Copyright Office by any 

interested stakeholders. 

(3) NOTICE OF USE ARCHIVE.—The Register of Copyrights shall create and 

maintain an archive to retain the Notice of Use filings under paragraph 

(1)(A)(i)(III). Such filings shall include— 

(A) the type of work being used, as listed in section 102(a) 

of this title; 

(B) a description of the work; 

(C) a summary of the search conducted under paragraph 

(1)(A)(i)(I); 

(D) the owner, author, recognized title, and other available 

identifying element of the work to the extent the infringer 

4
 
 

 

 

 

 

 

knows such information with a reasonable degree of 

certainty; 

(E) the source of the work, including the library or archive 

in which the work was found, the publication in which the 

work originally appeared, the website from which the work 

was taken, (including the url and the date the site was 

accessed); 

(F) a certification that the infringer performed a qualifying 

search in good faith under this subsection to locate the 

owner of the infringed copyright; and 

(G) the name of the infringer and how the work will be 

used. 

Notices of Use filings retained under the control of the Copyright 

Office shall be made available to individuals or the public only 

under the conditions specified by regulations of the Copyright 

Office. 

(4) PENALTY FOR FAILURE TO COMPLY.—If an infringer fails to comply 

with any requirement under this subsection, the infringer is not eligible for 

a limitation on remedies under this section. 

(c) LIMITATIONS ON REMEDIES.—The limitations on remedies in an action for 

infringement of a copyright to which this section applies are the following: 

(1) MONETARY RELIEF.— 

(A) GENERAL RULE.—Subject to subparagraph (B), an award for 

monetary relief (including actual damages, statutory damages, 

costs, and attorney’s fees) may not be made other than an order 

requiring the infringer to pay reasonable compensation to the 

owner of the exclusive right under the infringed copyright for the 

use of the infringed work. 

(B) FURTHER LIMITATIONS.—An order requiring the infringer to 

pay reasonable compensation for the use of the infringed work may 

not be made under subparagraph (A) if the infringer is a nonprofit 

educational institution, museum, library, archives, or a public 

broadcasting entity (as defined in subsection (f) of section 118), or 

any of such entities’ employees acting within the scope of their 

employment, and the infringer proves by a preponderance of the 

evidence that— 

(i) the infringement was performed without any purpose of 

direct or indirect commercial advantage; 

(ii) the infringement was primarily educational, religious, 

or charitable in nature; and 

(iii) after receiving a notice of claim of infringement, and 

having an opportunity to conduct an expeditious good faith 

investigation of the claim, the infringer promptly ceased the 

infringement. 

(C) EFFECT OF REGISTRATION ON REASONABLE COMPENSATION.—If 

a work is registered, the court may, in determining reasonable 

5
 
 

compensation under this paragraph, take into account the value, if 

any, added to the work by reason of such registration. 

(2) INJUNCTIVE RELIEF.— 

(A) GENERAL RULE.—Subject to subparagraph (B), the court may 

impose injunctive relief to prevent or restrain any infringement 

alleged in the civil action. If the infringer has met the 

requirements of subsection (b), the relief shall, to the extent 

practicable and subject to applicable law, account for any harm 

that the relief would cause the infringer due to its reliance on 

subsection (b). 

(B) EXCEPTION.—In a case in which the infringer has prepared or 

commenced preparation of a new work of authorship that recasts, 

transforms, adapts, or integrates the infringed work with a 

significant amount of original expression, any injunctive relief 

ordered by the court may not restrain the infringer’s continued 

preparation or use of that new work, if— 

(i) the infringer pays reasonable compensation in a 

reasonably timely manner after the amount of such 

compensation has been agreed upon with the owner of the 

infringed copyright or determined by the court; and 

(ii) the court requires that the infringer provide attribution, 

in a manner that is reasonable under the circumstances, to 

the legal owner of the infringed copyright, if requested by 

such owner; 

however 

(iii) The subsection (2)(B)(i)-(ii) limitation on injunctive 

relief shall not apply if— 

(I)	 the owner of the work is also an author of 

the work; 

(II)	 the owner requests such injunctive relief; 

and 

(III)	 the owner alleges, and the court so finds, 

that the infringer’s continued and intentional 

preparation or use of the new work would be 

prejudicial to the owner’s honor or 

reputation, and this harm is not otherwise 

compensable. 

(C) LIMITATIONS.—The limitations on injunctive relief under 

subparagraphs (A) and (B) may not be available to an infringer or a 

representative of the infringer acting in an official capacity if the 

infringer asserts that neither the infringer nor any representative of 

the infringer acting in an official capacity is subject to suit in the 

courts of the United States for an award of damages for the 

infringement, unless the court finds that the infringer— 

(i) has complied with the requirements of subsection (b); 

and 

6
 
 

 

 

 

 

 

 

(ii) pays reasonable compensation to the owner of the 

exclusive right under the infringed copyright in a 

reasonably timely manner after the amount of reasonable 

compensation has been agreed upon with the owner or 

determined by the court. 

(D) RULE OF CONSTRUCTION.—Nothing in subparagraph (C) shall 

be construed to authorize or require, and no action taken under 

such subparagraph shall be deemed to constitute, either an award 

of damages by the court against the infringer or an authorization to 

sue a State. 

(E) RIGHTS AND PRIVILEGES NOT WAIVED.—No action taken by an 

infringer under subparagraph (C) shall be deemed to waive any 

right or privilege that, as a matter of law, protects the infringer 

from being subject to suit in the courts of the United States for an 

award of damages. 

(d) PRESERVATION OF OTHER RIGHTS, LIMITATIONS, AND DEFENSES.—This 

section does not affect any right, or any limitation or defense to copyright 

infringement, including fair use, under this title. If another provision of this title 

provides for a statutory license that would permit the use contemplated by the 

infringer, that provision applies instead of this section. 

(e) COPYRIGHT FOR DERIVATIVE WORKS AND COMPILATIONS.—Notwithstanding 

section 103(a), an infringer who qualifies for the limitation on remedies afforded 

by this section shall not be denied copyright protection in a compilation or 

derivative work on the basis that such compilation or derivative work employs 

preexisting material that has been used unlawfully under this section. 

(f) EXCLUSION FOR FIXATIONS IN OR ON USEFUL ARTICLES.—The limitations on 

remedies under this section shall not be available to an infringer for infringements 

resulting from fixation of a pictorial, graphic, or sculptural work in or on a useful 

article that is offered for sale or other commercial distribution to the public. 

(g) TECHNICAL AND CONFORMING AMENDMENT.—The table of sections for 

chapter 5 of title 17, United States Code, is amended by adding at the end the 

following: 

514. Limitation on remedies in cases involving orphan works. 

(h) EFFECTIVE DATE.— 

(1) IN GENERAL.—The amendments made by this section shall take effect 

on January 1, 20__. 

SEC. 3. REPORT TO CONGRESS. 

Not later than December 12, 20__, the Register of Copyrights shall report to the 

Committee on the Judiciary of the Senate and the Committee on the Judiciary of 

the House of Representatives on the implementation and effects of the 

amendments made by section 2, including any recommendations for legislative 

changes that the Register considers appropriate. 

7
 
 

 

 

 

 

Section-by-Section Analysis of Orphan Works Proposal 

The analysis below provides a brief summary of the key provisions of the proposed 

orphan works limitation on remedies legislation. This legislation applies to all categories of 

works, all users, and virtually all uses. It provides limitations on the remedies available to 

plaintiffs in copyright infringement cases where the work being infringed is demonstrated to be 

an orphan work. The key factor for determining if a work is an orphan work is the inability to 

identify or to locate the copyright owner after a good-faith qualifying search. The proposal also 

includes a savings clause preserving the defense of fair use, along with all other rights and 

limitations. While not identical, this legislation is substantively based upon the Shawn Bentley 

Orphan Works Act, which passed the Senate but not the House in 2008. The Copyright Office 

intends it to be enacted as a new “section 514. Limitation on remedies in cases involving orphan 

works.” 

Section 514(a). Definitions 

This section defines three important terms used in the proposed legislation. First, it 

describes the required elements of a “Notice of Claim of Infringement,” which is a written 

document sent by the owner of an infringed copyright to the user of the work, typically after the 

user has performed an unsuccessful good faith qualifying search and begun to use the work, 

setting forth identifying and contact information regarding the work and its ownership. As noted 

below, such a notice is a precursor to a reasonable compensation negotiation. 

The second term defined in this section is “owner of the infringed copyright,” which is an 

owner of any of the exclusive rights under section 106, or any entity with the authority to license 

any such right. An owner of the infringed copyright is the subject of a good faith qualified 

search, and the party who may file a Notice of Claim of Infringement. 

Finally, “reasonable compensation” is defined as the amount on which a willing buyer 

and willing seller would have agreed upon for use of the infringed work immediately before 

infringement began. 

Section 514(b)(1). Conditions for Eligibility - Conditions 

This section lists six conditions, each of which must be met by an infringer if the 

infringer is to be eligible for limitations on remedies. First, the infringer must prove by a 

preponderance of the evidence that, before the infringement began, he or she performed a good 

faith qualifying search (a concept that is elucidated below) for the owner of the infringed 

copyright, but was unable to identify and locate the owner. Second, the infringer must file a 

Notice of Use with the Register of Copyrights. Third the infringer must attribute the infringed 

work to the legal owner, if known, and if such attribution is reasonable under the circumstances. 

Fourth, any public distribution, display, or performance of the infringing work must include an 

“orphan work” symbol, the design of which and manner of inclusion to be determined by the 

Register of Copyrights. Fifth, the infringer must assert eligibility for limitations on remedies in 

1
 
 

 

 

its initial pleading; and sixth, the infringer must, as part of making discovery disclosures under 

Rule 26 of the Federal Rules of Civil Procedure, state in detail the basis for eligibility for the 

limitations, including a description and documentation of the qualified search. 

Even if an infringer meets all of the above requirements, there is no eligibility for 

limitations on remedies if the infringer receives a Notice of Claim of Infringement from the 

copyright owner and either fails to negotiate reasonable compensation or fails to pay reasonable 

compensation, either under an agreement with the owner or under a court order. 

Section 514(b)(2)(A). Conditions for Eligibility – Requirements for Qualifying Searches 

In general, a qualifying search requires a “diligent effort,” that is reasonable under the 

circumstances, to locate the copyright owner before and at a time reasonably proximate to the 

infringement. A diligent effort requires, at minimum, four elements. First, a search of relevant 

online Copyright Office records, provided sufficient identifying information exists. Second, a 

search of reasonably available sources of copyright authorship and ownership information, as 

well as licensor information where appropriate. Third, the use of appropriate technology tools, 

print resources, and reasonable expert assistance. Fourth, the use of appropriate databases, 

including those available online. A diligent effort also includes reasonable and appropriate 

actions considering facts available at the start of a search and uncovered during a search, along 

with review of non-online Copyright Office records that are likely to be useful. 

In performing a qualifying search, the infringer will ordinarily rely upon applicable 

statements of Recommended Practices produced and maintained by the Copyright Office, which 

are described below. 

Neither the lack of identifying information on a copy or phonorecord regarding the 

copyright owner, nor the fact that an identified owner does not respond to communications 

regarding a work, is sufficient to meet the conditions for a qualifying search. A qualifying 

search may require the use of paid resources, such as subscription databases. 

Section 514(b)(2)(A)(vi). Effect of Foreign Searches 

Some foreign jurisdictions certify searches for copyright owners as being in good faith 

and sufficiently diligent. If a U.S. infringer relies in part upon such a certification in making the 

case that his search qualifies, a court may take this into account. This rule only applies, 

however, if the foreign jurisdiction whose certification is being relied upon reciprocally accepts 

qualifying searches from the U.S. in the same manner. 

Section 514(b)(2)(B). Conditions for Eligibility – Information to Guide Searches; 

Recommended Practices 

The Register of Copyrights shall maintain and make available to the public, and 

2
 
 

 

 

 

 

 

 

 

 

 

 

periodically update, at least one statement of Recommended Practices per category (or 

subcategory) of works under 102(a), for conducting and documenting a qualifying search. Each 

statement will ordinarily refer to relevant materials, resources, databases, and technology tools. 

The Register, at her discretion, shall consider materials, resources, databases, technology tools, 

and practices that are reasonable and relevant, as well as any comments by interested 

stakeholders. 

Section 514(b)(3). Conditions for Eligibility – Notice of Use Archive 

A Notice of Use filing (which is one of the conditions for eligibility) must include: type 

of work being used (as listed in section 102(a)), description of work, summary of qualifying 

search, any available identifying elements of work, source of work (if website, include URL and 

date), certification of good faith qualifying search, and name of infringer. The Copyright Office 

must create and maintain a Notice of Use archive; filings shall be made available only under 

Copyright Office regulations. 

Section 514(c)(1) Limitations on Remedies - Monetary Relief 

Monetary relief (including actual damages, statutory damages, costs, and attorney’s fees) 

shall be limited to an order to pay reasonable compensation to the owner of the infringed 

copyright for use of the infringed work. No monetary relief may be made if the infringer is a 

nonprofit educational institution, museum, library, archives, or public broadcaster (or employee 

thereof), and proof by preponderance of the evidence is made that infringement was performed 

without purpose of direct or indirect commercial advantage; was primarily educational, religious, 

or charitable; and, after Notice of Claim of Infringement and good faith investigation, 

infringement promptly ceases. Additionally, a court may take the value added to an infringed 

work by virtue of its registration into account in determining reasonable compensation. 

Section 514(c)(2) Limitations on Remedies - Injunctive Relief 

Injunctive relief is available for infringement of orphan works. However, if the infringer 

qualifies for limitations on liability, the injunction must account for any harm the relief would 

cause the infringer due to his reliance on eligibility for remedies limitation. 

Exception for Derivative Works – If the user has prepared or begun to prepare a new 

work that combines the infringed work with significant original expression, the court may not 

enjoin the preparation or use of the new work, provided that the user pays timely reasonable 

compensation, as either agreed with the owner or ordered by the court, and, if requested by the 

owner, the infringer provides attribution to the legal owner of the work, as reasonable under the 

circumstances. This exception does not apply if an owner, who is also the author of the work in 

question, seeks injunctive relief in order to remedy a situation where his or her reputational 

interests are at stake, such as the unauthorized use of the orphan work in a manner that is 

3
 
 

 

 

 

 

 

 

 

 

prejudicial to the owner’s honor. In such a situation, the court has the option of granting 

injunctive relief. 

Eleventh Amendment Limitations – If an infringer (such as a State entity) asserts that it is 

immune, under the Eleventh Amendment, from money damages, it may not take advantage of 

the limits on injunctive relief, unless it (a) complies with the eligibility requirements and (b) pays 

timely reasonable compensation, as either agreed with the owner or ordered by the court. These 

limitations are not to be construed to authorize, require, or constitute an award of damages; nor 

shall they constitute an authorization to sue a State. If an infringer pays reasonable 

compensation under this limitation, this does not waive any Eleventh Amendment protection it 

has from being sued for money damages. 

Section 514(d) Preservation of Other Rights, Limitations, and Defenses 

All rights, limitations, and defenses regarding copyright infringement are preserved, 

including fair use. If the use contemplated by the infringer is covered by a statutory license, that 

license applies instead of these limitations on remedies. 

Section 514(e) Copyright for Derivative Works and Compilations 

If an infringer qualifies for limitations on remedies, he can still obtain copyright 

protection for a derivative work or compilation that uses preexisting material in a manner that is 

technically infringing under this section. 

Section 514(f) Exclusion for Fixations in or on Useful Articles 

The limitations on remedies do not apply to fixations of pictorial, graphic, or sculptural 

works in or on useful articles that are made commercially available. 

Report to Congress 

Within five years from enactment, the Register of Copyrights shall report to Congress on 

the implementation and effects of the orphan works amendments, including any 

recommendations for appropriate changes. 

4
 
orphan works and mass digitization

u.s. copyright office

appendix b federal register notices 

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Federal Register / Vol. 77, No. 204 / Monday, October 22, 2012 / Notices 64555 

will be distributed on or about 

January 1, 2013. 

This notice is issued pursuant to 42 

U.S.C. 2996f(f). Comments and 

recommendations concerning potential 

grantees are invited, and should be 

delivered to LSC within thirty (30) days 

from the date of publication of this 

notice. 

Victor M. Fortuno, 

Vice President & General Counsel. 

[FR Doc. 2012–25948 Filed 10–19–12; 8:45 am] 

BILLING CODE 7050–01–P 

LIBRARY OF CONGRESS 

Copyright Office 

[Docket No. 2012–12] 

Orphan Works and Mass Digitization 

AGENCY: Copyright Office, Library of 


Congress. 


ACTION: Notice of inquiry. 


SUMMARY: The U.S. Copyright Office is 

reviewing the problem of orphan works 

under U.S. copyright law in 

continuation of its previous work on the 

subject and in order to advise Congress 

as to possible next steps for the United 

States. The Office has long shared the 

concern with many in the copyright 

community that the uncertainty 

surrounding the ownership status of 

orphan works does not serve the 

objectives of the copyright system. For 

good faith users, orphan works are a 

frustration, a liability risk, and a major 

cause of gridlock in the digital 

marketplace. The issue is not contained 

to the United States. Indeed, in recent 

months, the European Commission has 

adopted measures that would begin to 

resolve the issue in certain contexts and 

a number of foreign governments are 

reviewing or proposing solutions. The 

Copyright Office seeks comments 

regarding the current state of play for 

orphan works. It is interested in what 

has changed in the legal and business 

environments during the past few years 

that might be relevant to a resolution of 

the problem and what additional 

legislative, regulatory, or voluntary 

solutions deserve deliberation. This is a 

general inquiry and the Office will 

likely publish additional notices on this 

topic. 

DATES: Comments are due by 5:00 p.m. 

EST on January 4, 2013. Reply 

comments are due by 5:00 p.m. EST on 

February 4, 2013. 

ADDRESSES: All comments shall be 

submitted electronically. A comment 

page containing a comment form is 

posted on the Copyright Office Web site 

at http://www.copyright.gov/orphan/ 

comment-submission. The Web site 

interface requires commenting parties to 

complete a form specifying name and 

organization, as applicable, and to 

upload comments as an attachment via 

a browser button. To meet accessibility 

standards, commenting parties must 

upload comments in a single file not to 

exceed six megabytes (‘‘MB’’) in one of 

the following formats: the Adobe 

Portable Document File (‘‘PDF’’) format 

that contains searchable, accessible text 

(not an image); Microsoft Word; 

WordPerfect; Rich Text Format (‘‘RTF’’); 

or ASCII text file format (not a scanned 

document). The form and face of the 

comments must include both the name 

of the submitter and organization. The 

Copyright Office will post all comments 

publicly on the Copyright Office’s Web 

site exactly as they are received, along 

with names and organizations. If 

electronic submission of comments is 

not feasible, please contact the 

Copyright Office at 202–707–8350 for 

special instructions. 

FOR FURTHER INFORMATION CONTACT: 

Karyn Temple Claggett, Senior Counsel, 

Office of Policy and International 

Affairs, by email at kacl@loc.gov; or 

Catherine Rowland, Senior Counsel, 

Office of Policy and International 

Affairs, by email at crowland@loc.gov; 

or contact the Copyright Office by 

telephone, at 202–707–8350. 

SUPPLEMENTARY INFORMATION: 

I. Background 

An ‘‘orphan work’’ is an original work 

of authorship for which a good faith, 

prospective user cannot readily identify 

and/or locate the copyright owner(s) in 

a situation where permission from the 

copyright owner(s) is necessary as a 

matter of law.1 Under current law, 

anyone who uses an orphan work 

without permission runs the risk that 

the copyright owner(s) may bring an 

infringement lawsuit for substantial 

damages, attorneys’ fees, and/or 

injunctive relief unless a specific 

exception or limitation to copyright 

applies.2 In such a situation, a 

productive and beneficial use of the 

work may be inhibited—not because the 

1 See United States Copyright Office, Report on 

Orphan Works (2006) (‘‘Orphan Works Report’’ or 

‘‘Report,’’ at 1, available at http:// 

www.copyright.gov/orphan/orphan-report.pdf. 

2 The Copyright Act, 17 U.S.C. § 101 et seq., 

includes several exceptions and limitations that 

would allow use of orphan works under certain 

circumstances, such as § 107 (fair use), § 108(h) (use 

by libraries during the last twenty years of the 

copyright term), and § 115(b) (statutory license to 

distribute phonorecords). The Office concluded in 

its Orphan Works Report, however, that existing 

provisions would not address many orphan works 

situations. See Orphan Works Report at 7. 

copyright owner has asserted his 

exclusive rights in the work, or because 

the user and owner cannot agree on the 

terms of a license—but merely because 

the user cannot identify and/or locate 

the owner and therefore cannot 

determine whether, or under what 

conditions, he or she may make use of 

the work. This outcome is difficult if not 

impossible to reconcile with the 

objectives of the copyright system and 

may unduly restrict access to millions of 

works that might otherwise be available 

to the public (e.g., for use in research, 

education, mainstream books, or 

documentary films). Accordingly, 

finding a fair solution to the orphan 

works problem remains a major goal of 

Congress and a top priority for the 

Copyright Office. 

A. 2006 Report on Orphan Works 

The Copyright Office published its 

Orphan Works Report (‘‘Report’’) in 

January 2006, after conducting a 

comprehensive study at the request of 

Congress. The Report documented the 

experiences of users who are unable to 

find copyright owners, the kinds of 

works at issue, and the kinds of projects 

that may be forestalled. It analyzed the 

legal issues, including the application of 

statutory damages in the orphan works 

context, and discussed a variety of 

possible solutions. In preparing the 

Report, the Office conducted an 

extensive public outreach process, 

including a series of roundtables in New 

York City and Washington, DC and a 

public comment period that yielded 

over 850 written comments from a 

variety of stakeholders. In short, the 

Office concluded that the problem of 

orphan works is pervasive; it affects a 

broad cross-section of stakeholders 

including members of the general 

public, archives, publishers, and 

filmmakers. 

The orphan works problem was 

exacerbated by a series of changes in 

U.S. copyright law over the past thirtyplus years. These changes slowly but 

surely relaxed the obligations of 

copyright owners to assert and manage 

their rights and removed formalities in 

the law that had served in part to 

provide users with readily accessible 

copyright information. Significant 

among those changes were the 

elimination of the registration and 

notice requirements, which resulted in 

less accurate and incomplete identifying 

information on works, and the 

automatic renewal of copyrighted works 

that were registered before the effective 

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date of the 1976 Copyright Act.3 

Subsequent amendments, such as the 

Sonny Bono Copyright Term Extension 

Act of 2008, extended the duration of 

copyright and increased the likelihood 

that some copyright owners would 

become unlocatable. To be clear, 

Congress amended the law for sound 

reasons, primarily to protect authors 

from technical traps in the law and to 

ensure U. S. compliance with 

international conventions. However, 

‘‘the net result of these amendments has 

been that more and more copyright 

owners may go missing.’’ 4 

As reflected in the Report, all kinds of 

works are potentially at issue, from 

music to books to film clips. That said, 

the Report also reflects that a significant 

percentage of the problem, if not the 

lion’s share, involves orphan 

photographs. Photographs are 

particularly challenging because they 

affect a vast variety of images, from 

historically important archival 

photographs residing in archives to 

contemporary photographs for which 

there may or may not be a living 

copyright owner. Photographs of all 

kinds also frequently lack or may 

become divorced from ownership 

information; that is, no label or caption 

is affixed to the photographs 

themselves. As a result, potential users 

of photographic works often lack the 

most basic information to begin a 

search. The Office received many 

comments focused on the difficulty of 

obtaining information about the author 

or copyright owner of individual 

photographs, and the numerous 

situations where photographs could not 

be used because the potential user could 

not discern a search path, let alone 

ownership. 

After reviewing a number of possible 

legislative solutions, the Office 

recommended a limitation on remedies, 

with some caveats. In general, the Office 

recommended that Congress amend the 

Copyright Act to limit the remedies 

available against good faith users of 

orphan works after the user had 

performed a ‘‘reasonably diligent 

search’’ for the owner of that work and 

conditional upon the user providing 

attribution to the author and owner of 

the work wherever possible.5 Notably, 

the Office did not at this early stage 

recommend specific statutory or 

3 These changes, as well as other changes in the 

1976 Act and in the Berne Convention 

Implementation Act of 1988, were important steps 

toward harmonizing U.S. copyright law with 

international treaties. 

4 Letter of Marybeth Peters, Register of 

Copyrights, U.S. Copyright Office (Sept. 25, 2008), 

available at http://www.copyright.gov/orphan/. 

5 See Orphan Works Report at 93–120. 

regulatory guidelines for determining a 

reasonably diligent search, but 

‘‘favor[ed] the development of 

guidelines or even binding criteria’’ by 

users and stakeholders.6 If a user 

satisfied the statutory requirements, the 

Office recommended that Congress limit 

the remedies that the copyright owner 

could seek against the good faith user of 

an orphan work to injunctive relief and 

‘‘reasonable compensation’’ for the use 

of the work.7 The Office also 

recommended a ‘‘take-down’’ option for 

certain noncommercial users engaged in 

noncommercial activities. 

B. 2008 Proposed Legislation 

Both the 109th and the 110th 

Congresses considered the orphan 

works problem, in each case introducing 

legislation that built upon many of the 

Copyright Office’s recommendations.8 

The proposed legislation would have: 

(1) Limited remedies available under the 

Copyright Act when a user is unable to 

locate the copyright owner or other 

appropriate rights holder after 

conducting a good faith reasonably 

diligent search; (2) been applicable on a 

case-by-case basis, meaning that users 

could not assume that an orphan work 

would retain its orphan status 

indefinitely; and (3) permitted the 

copyright owner or other rights holder 

later to collect reasonable compensation 

from the user, but not statutory damages 

or attorneys’ fees. In other words, the 

proposed legislation did not create an 

exception or limitation of general 

applicability, but rather placed a 

limitation on the remedies that might be 

imposed in a particular circumstance 

with respect to a particular user. The 

legislation also provided a special 

provision for noncommercial actors 

engaged in noncommercial activities, 

with some conditions. 

Photographs proved to be a 

particularly complex and difficult area 

to resolve. As cited in the Report and 

the congressional deliberations that 

followed, the problem of orphan 

photographs is well documented. At the 

same time, Congress wrestled with how 

best to protect photographers who are 

the victims of accidental or nefarious 

acts, including purposeful deletion of 

bylines, captions, or digital watermarks. 

The 2008 bills built upon the 

foundation of the 2006 bill and included 

a number of proposals designed with 

6 Id. at 108–10. 

7 Id. at 115–21. 

8 Proposed bills included: The Shawn Bentley 

Orphan Works Act of 2008, S. 2913, 110th Cong. 

(2008), which was passed by the Senate; the Orphan 

Works Act of 2008, H.R. 5889, 110th Cong. (2008); 

and the Orphan Works Act of 2006, H.R. 5439, 

109th Cong. (2006). 

photographers in mind, such as: A 

provision in both the House and the 

Senate drafts that required users to 

promptly compensate copyright owners 

should they appear (including for 

example, where the amount of payment 

might be too small to make litigation to 

collect it worthwhile); provisions in 

both drafts that would have excluded 

infringements resulting from fixation of 

a pictorial, graphic, or sculptural work 

in or on a useful article that is offered 

for sale or other commercial distribution 

to the public (e.g., the use of 

photographs on tote bags or similar 

mass merchandise); and a provision in 

the House draft that required a user to 

file search information and related 

evidence with the Copyright Office 

under fees to be set by regulation. 

Moreover, the 2008 bills would have 

delayed the effective date of legislation 

until such time as the Copyright Office 

could confirm the availability of two 

‘‘separate and independent searchable, 

comprehensive electronic databases, 

that allow for searches of copyrighted 

works that are pictorial, graphic, and 

sculptural works[.]’’ 9 

Search criteria also became a major 

focus in both the House and the Senate, 

and stakeholders with a variety of 

perspectives engaged in discussions and 

refinement of the bills throughout the 

2008 deliberations. Ultimately, Congress 

settled upon an innovative mix of 

mandatory and voluntary requirements 

that served to provide meaningful 

guidance to users, and incentives to 

copyright owners to make themselves 

locatable (including through investment 

in registries and search tools that might 

connect users to them). For example, the 

bills set forth certain baseline 

requirements (such as searching the 

online records of the Copyright Office), 

but also would have required users to 

consult the best practices applicable to 

the work at issue (e.g., practices for 

finding photographers or filmmakers), 

which would be developed through the 

participation of both copyright owners 

and copyright users and coordinated by 

the Register of Copyrights. 

Congress came very close to adopting 

a consensus bill shortly before the 

presidential election in 2008, but did 

not enact orphan works legislation 

before adjourning. 

9 See H.R. 5889, at Section 4(b)(1) (delaying 

effective date of legislation for pictorial, graphic, 

and sculptural works until January 2013 or the 

Copyright Office could confirm the availability of 

searchable databases); see also S. 2913, at Section 

2 (delaying effective date of entire legislation until 

January 2013 or the Copyright Office could confirm 

the availability of searchable databases for certain 

pictorial, graphic, and sculptural works). 

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C. Ongoing Litigation 

Recent high-profile litigation in the 

United States raised additional 

questions and concerns regarding 

orphan works, particularly in the 

context of mass digitization. The 

possibility of mass digitization was not 

squarely addressed by parties 

responding to the Copyright Office in 

2005–2006, is not a focus of the Orphan 

Works Report, and was not addressed by 

Congress in its proposed legislation. The 

Report does reflect some limited 

discussion of the increased risk of 

institutions that might want to use more 

than one orphan work in a single 

project, such as an archive posting 

multiple historic images to its Web site. 

This discussion informed and led to the 

special provisions for noncommercial 

actors addressed above, but it did not 

address situations where works might 

be digitized systematically, including 

for preservation purposes, or situations 

where collections of works might be 

reproduced en masse, including through 

public-private partnerships. Ultimately, 

the issues at the heart of mass 

digitization are policy issues of a 

different nature: the works may in fact 

have copyright owners, but it may be 

too labor-intensive and too expensive to 

search for them, or it may be factually 

impossible to draw definitive 

conclusions about who the copyright 

owners are or what rights they actually 

own. 

(1) Google Books Search Litigation 

In 2004, Google began an ambitious 

project to scan and digitize millions of 

books held in several major academic 

libraries, including many books still 

protected by copyright. As part of its 

‘‘Google Books’’ project, Google 

provided digital copies of the scanned 

books to partner libraries and made text 

of the books available for online 

searching. Users were permitted to view 

‘‘snippets’’ of scanned books that were 

still protected by copyright and to 

download full copies of books that were 

in the public domain. Google did not, 

however, obtain permission from the 

relevant copyright owners for the 

project. In 2005, a group of authors and 

publishers filed a class action lawsuit in 

federal district court asserting that the 

Google Books project amounted to 

willful copyright infringement.10 

The parties filed a proposed 

settlement with the district court on 

10 For a discussion of the background of the case, 

see Authors Guild, Inc. v. Google Inc., 770 F. Supp. 

2d 666 (S.D.N.Y. 2011). A group of photographers 

and illustrators filed a related suit in 2010. See Am. 

Soc’y of Media Photographers, Inc. v. Google Inc., 

No. 10–2977 (S.D.N.Y. 2010). 

October 28, 2008. After significant 

objections from various individual 

authors, groups, and foreign 

governments, the parties filed an 

amended settlement agreement on 

November 13, 2009. Under the terms of 

the amended settlement, copyright 

owners of out-of-print books were 

required to ‘‘opt out’’ of the settlement 

or their works could be scanned, 

digitized, and exploited by Google 

through a number of new business 

arrangements. These business 

arrangements included online access, 

use of the books in subscription 

databases, and use of advertisements in 

connection with these services. The 

settlement also proposed to establish a 

‘‘Book Rights Registry’’ (the ‘‘Registry’’) 

that would maintain a database of rights 

holders and administer distribution of 

revenues from exploitation of the 

scanned books. Google would provide 

payments to the Registry on behalf of 

rights holders and, in turn, the Registry 

would distribute the funds to registered 

rights holders. If no rights holder came 

forward to claim the funds after a 

certain amount of time, the funds could 

be used to cover the expense of 

searching for copyright owners or 

donated to literary-based charities.11 

The Department of Justice (‘‘DOJ’’) 

filed two statements of interest in the 

case on behalf of the United States. DOJ 

acknowledged that ‘‘[b]reathing life into 

millions of works that are now 

effectively dormant’’ and increasing 

public access to those works is a 

‘‘worthy objective[ ].’’ 12 At the same 

time, DOJ expressed concern that the 

settlement could conflict with core 

principles of the Copyright Act and also 

confer a ‘‘significant and possibly 

anticompetitive advantage’’ on 

Google.13 

On March 22, 2011, Judge Chin of the 

United States District Court for the 

Southern District of New York rejected 

the amended settlement agreement filed 

in the case.14 The opinion 

acknowledged that ‘‘the benefits of 

Google’s book project are many.’’ 15 The 

court, however, also expressed concern 

about the potential reach of the parties’ 

proposal. Ultimately, the court 

concluded that the proposed settlement 

would inappropriately implement a 

11 See Authors Guild, Inc., 770 F. Supp. 2d at 

670–71. 

12 Statement of Interest of the United States of 

America Regarding Proposed Amended Settlement 

Agreement, Authors Guild, Inc. v. Google, Inc., No. 

05–8136 (S.D.N.Y Feb. 4, 2010) at 1, available at 

http://www.justice.gov/atr/cases/f255000/ 

255012.pdf. 

13 Id. at 2. 

14 See Authors Guild, Inc., 770 F. Supp. 2d 666. 

15 Id. at 670. 

forward-looking business arrangement 

granting Google significant rights to 

exploit entire books without permission 

from copyright owners, while at the 

same time releasing claims well beyond 

those presented in the dispute.16 The 

court noted that the settlement would 

give Google—and Google alone—the 

ability to control the digital 

commercialization of millions of books 

as it would require authors and other 

rights holders of out-of-print books to 

‘‘opt out’’ of the settlement by objecting 

to the reproduction, distribution, and 

display of their works. 

The court rejected the settlement in 

part because of the settlement’s 

treatment of orphan works. The court 

expressly deferred to Congress on 

orphan works-related issues, stating that 

the ‘‘questions of who should be 

entrusted with guardianship over 

orphan books, under what terms, and 

with what safeguards, are matters more 

appropriately decided by Congress than 

through an agreement among private, 

self-interested parties.’’ 17 Citing 

Supreme Court precedent, the court also 

affirmed that it is ‘‘Congress’s 

responsibility to adapt the copyright 

laws in response to changes in 

technology.’’ 18 Finally, the court 

asserted that the settlement agreement 

would raise international concerns and 

thus for that reason as well, ‘‘the matter 

is better left for Congress.’’ 19 

The Second Circuit recently stayed 

the case pending Google’s appeal of 

class certification. On October 4, 2012, 

the five major publisher plaintiffs 

settled with Google. According to public 

statements about the settlement, the 

publisher plaintiffs will be permitted to 

choose whether or not to include 

digitized books in the Google Books 

project.20 Further details of the 

settlement have not been made public. 

Notably, the settlement does not appear 

to require formal court approval because 

it only resolves the claims of the 

specific publisher plaintiffs. The 

settlement does not affect claims made 

by the Authors Guild or non-parties to 

the lawsuit. Therefore, the settlement 

would not address claims over orphan 

works. 

(2) HathiTrust Litigation 

On September 12, 2011, the Authors 

Guild, along with two foreign authors’ 

groups and a number of individual 

16 Id at 677. 

17 Id. 

18 Id. 

19 Id. at 678. 

20 See Statement of the Ass’n of Am. Publishers, 

Publishers and Google Reach Settlement (Oct. 4, 

2012), available at http://www.publishers.org/press/ 

85/. 

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authors, sued an online digital 

repository known as the HathiTrust 

Digital Library (‘‘HathiTrust’’) and its 

five major university partners.21 The 

suit challenged HathiTrust’s digitization 

efforts and its plan to digitize and make 

available orphan works to faculty, 

students, and library patrons (the 

‘‘Orphan Works Project’’). In addition to 

its overarching claim of copyright 

infringement, the complaint alleged, 

inter alia, that the Authors Guild was 

easily able to locate several of the 

authors whose works were deemed 

orphaned and digitized by the 

HathiTrust. Thus, the Authors Guild 

argued that the Orphan Works Project 

was not actually limited to orphan 

works. The Authors Guild sought an 

injunction preventing defendants from 

‘‘making available any so-called orphan 

work protected by copyright’’ and 

impoundment of ‘‘all unauthorized 

digital copies of works protected by 

copyright.’’ 22 Shortly thereafter, 

HathiTrust suspended the Orphan 

Works Project indefinitely. 

On July 27, 2012, the parties in 

Authors Guild, Inc. v. HathiTrust 

submitted their final round of briefs 

connected to their motions for summary 

judgment.23 The Authors Guild’s 

motion asked the court to reject the 

defendants’ copyright defenses, 

including fair use. The Authors Guild 

also urged the court to issue an 

injunction against the HathiTrust’s 

suspended Orphan Works Project. The 

Authors Guild acknowledged in its 

reply brief that the ‘‘issues raised by 

orphan works * * * are important,’’ but 

argued that ‘‘[b]y scanning the books 

without authority, Defendants usurp 

authors’ rights to control the digital 

reproduction of their work and expose 

them to security risks that previously 

did not exist.’’ 24 

The HathiTrust and its partner 

libraries argued in their reply brief that 

all four factors of a fair use analysis 

favor the libraries’ activities, even in an 

environment of rapid technological 

advancement.25 ‘‘Plaintiffs continue to 

ask this Court to wait for Congress to 

21 Authors Guild, Inc. v. HathiTrust, No. 11–6351 

(S.D.N.Y. filed Sept. 12, 2011). 22 First Am. Compl. at page 28, Authors Guild, 

Inc. v. HathiTrust, No. 11–6351 (S.D.N.Y 2011). 23 A third motion, in support of the HathiTrust, 

was filed by the National Federation of the Blind. 

See Def. Intervenors’ Reply in Supp. of Mot. for 

Summ. J., Authors Guild, Inc. v. HathiTrust, No. 

11–6351 (S.D.N.Y. filed July 27, 2012). 24 See Reply Mem. of Law in Further Supp. of 

Pls.’ Mot. for Summ. J. at 1, 2, Authors Guild, Inc. 

v. HathiTrust, No. 11–6351 (July 27, 2012). 25 See Reply Mem. in Supp. of the Libraries’ Mot. 

for Summ. J. on Fair Use and Lack of Infringement 

Under Section 106 of the Copyright Act, Authors 

Guild, Inc. v. HathiTrust, No. 11–6351 (S.D.N.Y. 

July 27, 2012). 

legislate,’’ the defendants stated, but 

‘‘[w]here, as here, Congress has not 

spoken, courts should ‘take the 

Copyright Act * * * as [they] find it,’ 

rather than close off publicly beneficial 

uses made possible by a new 

technology.’’ 26 

On October 10, 2012, the district court 

ruled in favor of the HathiTrust and its 

partner libraries on issues relating to 

digitization, preservation, searching,27 

and access for the print-disabled.28 The 

court found that these activities are 

largely transformative and ultimately 

protected by fair use, further opining 

that ‘‘the underlying rationale of 

copyright law is enhanced’’ by the 

HathiTrust digital library.29 The court 

did not reach the merits of the copyright 

claims with respect to the Orphan 

Works Project, however, finding instead 

that the issue is not ripe for adjudication 

because the contours of the Orphan 

Works Project have changed and the 

defendants have suspended the 

project.30 

D. The Role of the Copyright Office and 

Private Registries 

In October 2011, the Register of 

Copyrights released a two-year plan of 

priorities and special projects for the 

U.S. Copyright Office. The special 

projects include several technical 

endeavors designed to update the 

Office’s record systems, which may help 

users to locate a copyright owner or 

confirm the suspicion that no such 

owner exists. 

(1) Historic Copyright Records 

One such project is the Office’s 

multiyear effort to digitize the entire 

inventory of historic copyright records 

dating back to 1870, many of which are 

still relevant in determining the 

copyright status of many works. Since 

2008, the Office has digitized more than 

22 million of the Office’s approximately 

60 million historical records. The Office 

is also engaged in a variety of 

investigative endeavors, including 

crowd sourcing, to determine how best 

to make the records searchable. This 

task is no small feat because the records 

are unique and cannot be destroyed or 

put at risk during the digitization 

process. Some historical records date 

back nearly to the civil war. They range 

from index cards to large documents, 

and some are written in pencil. Through 

26 Id. at 1 (citations omitted). 

27 The court took care to note that the searching 

function did not reveal any copyrighted material. 

See Authors Guild, Inc. v. HathiTrust, No. 11–CV– 

6351, 2012 WL 4808939 (S.D.N.Y. Oct. 10, 2012). 

28 See id. 

29 Id. at *14. 

30 Id. at *7–8. 

this project, the Office has engaged with 

a number of experts and the public 

(through meetings, blogs, and crowd 

sourcing) to evaluate cost-effective 

approaches to metadata capture, public 

display, and how best to make the 

scanned materials publicly available in 

a meaningful way as soon as possible. 

(2) Upgrades to Copyright Registration 

and Recordation Systems 

Alongside the digitization of the 

Office’s historic records, the Office is 

also actively pursuing a comprehensive 

analysis of its electronic registration and 

recordation systems, not only to 

enhance the experience for authors and 

copyright owners, who rely on these 

services to secure legal rights, but also 

to develop a plan for improving the 

nature, accuracy, and searchability of 

the Office’s public databases. The Office 

is meeting with a diverse range of 

business and information technology 

experts to explore appropriate technical 

upgrades and enhancements, including 

exploring the feasibility of connecting 

the Office’s database of copyright 

ownership records with private sector 

data to facilitate licensing and other 

productive uses of copyrighted works. 

Together, these projects lay the 

foundation necessary to build and 

maintain a twenty-first century database 

of copyright ownership information that 

will enhance public access to 

information and improve potential 

users’ ability to investigate the copyright 

status of works, including the 

identification and location of copyright 

owners. 

E. Discussion of Legal Issues in Mass 

Digitization 

Outside of litigation, the issue of mass 

digitization has been aired largely 

through the symposia of academic 

institutions or professional associations 

(i.e., bar associations).31 To further the 

conversations, the Copyright Office 

published a Preliminary Analysis and 

Discussion Document (the 

‘‘Analysis’’) 32 in October 2011, in 

which it laid out the issues raised by the 

intersection between copyright law and 

the mass digitization of books, including 

31 For example, the Berkeley Center for Law and 

Technology hosted a symposium entitled Orphan 

Works and Mass Digitization in April 2012. 

Additionally, the Kernochan Center for Law, Media 

and the Arts at Columbia Law School, in 

cooperation with the Copyright Office, will present 

a public symposium on November 2, 2012, which 

will include discussions of mass digitization in the 

context of Section 108. 

32 United States Copyright Office, Legal Issues in 

Mass Digitization: A Preliminary Analysis and 

Discussion Document (2011), available at http:// 

www.copyright.gov/docs/massdigitization/ 

USCOMassDigitization_October2011.pdf. 

wreier-aviles on DSK5TPTVN1PROD with 

Federal Register / Vol. 77, No. 204 / Monday, October 22, 2012 / Notices 64559 

some of the issues raised by the Google 

Books and HathiTrust cases. The Office 

identified a number of key legal and 

policy questions to explore when 

assessing mass digitization, including 

the objectives and public policy goals of 

mass digitization projects, the interplay 

among library exceptions, fair use, and 

licensing, and the ability of public and 

private actors to work together. 

In the Analysis, the Office observed 

that under current law the issues of 

mass digitization and orphan works 

cannot reasonably be separated from the 

issue of licensing because the premise of 

an orphan works situation is that a good 

faith user has tried to, or would like to, 

locate the copyright owner but cannot. 

The Office described existing licensing 

options (direct licensing and voluntary 

collective licensing), as well as two 

licensing models (extended collective 

licensing and statutory licensing) that 

might operate as potential if not partial 

solutions for the orphan works problem, 

particularly in the mass digitization 

context.33 

The Office noted that while the 

United States has not adopted extended 

collective licensing, these regimes exist 

in a number of Nordic countries.34 

Typically, this model operates 

something like a class action settlement, 

in the sense that representatives of 

copyright owners and representatives of 

users negotiate terms that are binding on 

all members of the group by operation 

of law (e.g., all textbook publishers), 

unless a particular copyright owner opts 

out. The government or a trusted 

designee administers payments. It is not 

quite compulsory licensing in that the 

parties (rather than the government) 

negotiate the rates, but it requires a 

legislative framework and often involves 

some degree of government oversight. 

Finally, the Office discussed the 

potential use of statutory licenses 

created by Congress. Statutory licenses 

provide users with access to certain 

types of works, under certain 

circumstances, in exchange for a 

statutorily or administratively set fee. 

The Office has traditionally viewed 

statutory licenses as a mechanism of last 

resort that must be narrowly tailored to 

33 In the context of voluntary collective licensing 

of books, the most experienced organization is the 

Copyright Clearance Center (‘‘CCC’’). The CCC was 

started by publishers in the age of photocopying 

and has since evolved to handle certain kinds of 

digital licenses. Voluntary collective licensing, 

however, does not provide solutions for orphan 

works where the authors are unknown and have not 

joined the collecting society. 

34 See Analysis at App. F (listing countries that 

follow this approach and providing an overview of 

the laws). 

address a specific failure in a 

specifically defined market. 

F. International Developments 

Foreign countries are also renewing 

their focus on the orphan works 

problem. The European Union and 

various other countries have recently 

proposed or adopted a number of 

legislative approaches to the orphan 

works issue. 

(1) Recent and Proposed Legislation 

Like the United States, the European 

Union has been grappling with the issue 

of orphan works for many years. In 

2011, the European Commission issued 

a draft proposal for an orphan works 

directive along with a working paper 

entitled ‘‘Impact Assessment on the 

Cross Border Online Access to Orphan 

Works.’’ 35 The Commission 

acknowledged the difficulties caused by 

orphan works and noted that a solution 

in the European Union was particularly 

urgent to avoid a ‘‘knowledge gap’’ with 

the United States if the then-pending 

Google Books Settlement was approved. 

The Commission identified several 

policy options for handling orphan 

works and assessed the economic and 

social impacts of each. Among the 

policy options the Commission 

considered was a statutory exception, 

extended collective licensing, and a 

specific orphan works license. 

The European Council formally 

approved the proposed orphan works 

directive (‘‘Directive’’) on October 4, 

2012.36 The Directive requires Member 

States to establish an exception and 

limitation to the rights of reproduction 

and ‘‘making available’’ for certain 

permitted uses of orphan works. The 

Directive excludes photographs unless 

embedded in other works, and limits the 

use of orphan works to ‘‘libraries, 

educational establishments or museums 

* * * archives, film or audio heritage 

institutions and public service 

broadcasting organizations’’ that are 

located in Member States and that have 

public service missions.37 A public 

35 European Commission, Commission Staff 

Working Paper Impact Assessment on the CrossBorder Online Access to Orphan Works 

Accompanying the Proposal for a Directive of the 

European Parliament and of the Council on Certain 

Permitted Uses of Orphan Works, COM (2011) 289 

final (May 24, 2011), available at http:// 

ec.europa.eu/governance/impact/ia_carried_out/ 

docs/ia_2011/sec_2011_0615_en.pdf. 

36 The European Council’s approval marked the 

last step in the legislative process. See Press 

Release, Council of the European Union, 

Intellectual Property: New EU Rules for Orphan 

Works (Oct. 4, 2012), available at http:// 

www.consilium.europa.eu/uedocs/cms_data/docs/ 

pressdata/en/intm/132721.pdf. 

37 See Directive of the European Parliament and 

of the Council on Certain Permitted Uses of Orphan 

organization that falls under the 

Directive may partner with a private 

organization and ‘‘generate revenues in 

relation to their use of orphan works’’ if 

that use is consistent with the public 

organization’s mission.38 The private 

partner, however, will not be permitted 

to use the works directly. The Directive 

requires a diligent search and provides 

that once a work is deemed orphaned in 

one Member State, it is deemed orphan 

in all Member States and ‘‘may be used 

and accessed’’ in all Member States. The 

Directive also calls for a single registry 

to maintain data on all works deemed 

orphan. A rights holder who later 

resurfaces may reclaim ownership of a 

work once deemed orphan and claim 

fair compensation for the use of the 

work as provided by individual Member 

States’ laws. Member States have two 

years to implement the Directive in 

national legislation. 

The European Commission also 

recently assisted private parties in 

negotiating a Memorandum of 

Understanding (‘‘Memorandum’’) to 

encourage voluntary collective licensing 

for ‘‘out-of-commerce’’ books and 

journals.39 ‘‘Out-of-commerce’’ works 

are works that are no longer 

commercially available because authors 

and publishers have chosen not to 

publish new editions or sell copies 

through the customary channels of 

commerce. The Memorandum expresses 

several principles that libraries, 

publishers, authors, and their collecting 

societies should follow in order to 

license the digitization and making 

available of books or journals that are 

out-of-commerce. The European 

Commission views the Memorandum as 

complimentary to its legislative 

proposals for orphan works, and part of 

a two-pronged approach to facilitate the 

development of digital libraries in 

Europe. 

Additionally, the United Kingdom 

issued proposed legislation 40 in 2012 

that would amend the Copyright, 

Designs and Patents Act of 1988 to 

permit the commercial and noncommercial use of orphan works under 

a licensing scheme that would include 

both individual licensing of orphan 

works as well as a form of voluntary 

Works, Art. 1(1), available at http:// 

register.consilium.europa.eu/pdf/en/12/pe00/ 

pe00036.en12.pdf. 

38 Id. at p. 13, ¶ 21. 

39 Memorandum of Understanding, Key Principles 

of the Digitsation and Making Available of Out-ofCommerce Works (Sept. 20, 2011), available at 

http://ec.europa.eu/internal_market/copyright/ 

docs/copyright-infso/20110920-mou_en.pdf. 

40 Enterprise and Regulatory Reform Bill, 2012– 

13, (HC Bill 61), cl. 59, available at http:// 

www.publications.parliament.uk/pa/bills/cbill/ 

2012-;2013/0061/cbill_2012-20130061_en_1.htm. 

wreier-aviles on DSK5TPTVN1PROD with 

64560 Federal Register / Vol. 77, No. 204 / Monday, October 22, 2012 / Notices 

extended collective licensing. The 

scheme would require a diligent search, 

the results of which would be verified 

by ‘‘an independent authorising 

body.’’ 41 The proposal would also 

establish an orphan works registry and, 

if the name of the rights holder is 

unknown (and therefore cannot be 

credited), any licensed use of the work 

would have to include a notice that 

refers back to the registry.42 The 

potential scheme is described as one in 

which rights holders will always reserve 

the right to opt out.43 

(2) Existing Laws 

Several countries already have 

adopted forms of orphan works 

solutions in national law. The Canadian 

Copyright Act (Section 77) permits users 

to file applications with the Copyright 

Board of Canada for the use of certain 

types of orphan works on a case-by-case 

basis. If an applicant demonstrates that 

it made a reasonable effort to locate the 

rights holder and the rights holder 

cannot be located, the Board will 

approve the request and issue a 

conditional non-exclusive license.44 

Pursuant to the Canada Copyright Act, 

the Copyright Board may issue licenses 

permitting uses including reproduction, 

publication, performance, and 

distribution. In June 2012, Canada 

passed amendments to its Copyright Bill 

that included an expansion of the 

exception for nonprofit organizations 

acting for the benefit of persons with 

perceptual disabilities to cover crossborder exchanges of orphan works that 

have been translated into a print 

disabled format.45 The 2006 Orphan 

Works Report identified some of the 

Canadian system’s burdens, and several 

studies have noted that it is rarely 

used.46 

France passed a law in February 2012 

that would make it easier to digitize 

twentieth century out-of-commerce 

books, implicating books published in 

France before January 1, 2001, which 

41 See Government Policy Statement: 

Consultation on Modernising Copyright, at 7 (July 

2012), available at http://www.ipo.gov.uk/response2011-copyright.pdf. 

42 Id. at 8. 

43 See id. at 10; see also The BIS Blog, Copyright 

Reform: Orphan Works and Extended Collective 

Licensing, Aug. 14, 2012, available at http:// 

blogs.bis.gov.uk/blog/2012/08/14/copyright-reformorphan-works-and-extended-collective-licensing 

(‘‘The Government’s proposals for ECL are not 

compulsory nor can they be imposed on a sector. 

It would be up to a collecting society to apply to 

use the system and every rights holder would retain 

the capacity to opt out.’’). 

44 Copyright Act, R.S.C., c. C–42, s. 77 (1985) 

(Can.), available at http://laws.justice.gc.ca/PDF/C42.pdf. 

45 Id. at s. 32. 

46 Orphan Works Report at 82–83. 

are not currently being commercially 

distributed or published either in print 

or digital formats.47 The scheme is 

conducted on an opt-out basis and, if an 

author chooses not to exploit the work 

within six months of the inscription of 

the book in the register managed by the 

French National Library, the digital 

rights are transferred to a designated 

collective management organization.48 If 

the copyright holder fails to claim rights 

to works that have been transferred to a 

designated collective management 

organization after ten years, libraries 

and archives will be allowed, with some 

exceptions, to digitize and provide 

access to the digitized works free of 

charge so long as the institution does 

not pursue a commercial or economic 

advantage.49 

Hungary amended its Copyright Act 

in 2009 to permit the use of orphan 

works under certain circumstances. 

Under the amended Act, the Hungarian 

Patent Office has the right to grant 

licenses for certain uses of orphan 

works to applicants who carry out a 

documented diligent search and pay 

compensation for such use.50 These 

licenses are limited to the territory of 

Hungary. Japan, Korea, and India have 

adopted either compulsory or 

government licensing for some orphan 

works.51 

Denmark and Finland both adopted 

extended collective licensing regimes, 

which allow collective licensing 

47 See Loi n° 2012–287 du 1er mars 2012 relative 

a` l’exploitation nume ́rique des livres indisponibles 

du xxe sie`cle [Law Number 2012–287 of March 1, 

2012, on the Digital Exploitation of Unavailable 

Books] Art. 134–1 (2012) (Fr.) (‘‘Law 2012–287’’), 

available at http://www.legifrance.gouv.fr/ 

affichTexte.do;jsessionid= 

4D8B77A47AA211DE6E336FD22AA18F60 

.tpdjo09v_2?cidTexte=JORFTEXT 

000025422700&dateTexte=20121016; see also 

International Federation of Reproduction Rights 

Organisations, French Parliament Passed Law on 

Out of Commerce Works on 22nd February 2012, 

(March 3, 2012), available at http://www.ifrro.org/ 

content/french-parliament-passed-law-outcommerce-works-22nd-february-2012. 

48 See Law Number 2012–287, Art. 134–4. 

49 See id., Art. 134–8. 

50 See Government Regulation on the Detailed 

Rules Related to the Licensing of Certain Use of 

Orphan Works, Arts. 2(1), 2(2), 3, Decree 100/2009, 

V. 8 (Hun.), available at http://www.hipo.gov.hu/ 

English/jogforras/100_2009.pdf; see also Miha ́ly 

Ficsor, How to Deal with Orphan Works in the 

Digital World? An Introduction to the New 

Hungarian Legislation on Orphan Works (European 

Parliament Committee on Legal Affairs, eds. 2009), 

available at http://www.europarl.europa.eu/ 

RegData/etudes/divers/juri/2009/419607/IPOLJURI_DV(2009)419607_EN.pdf. 

51 See Chosakuken-Ho [Copyright Law], Law No. 

48 of 1970, 2009, art. 67, 74 (Japan), unofficial 

translation available at http://www.cric.or.jp/cric_e/ 

clj/clj.html); see also Copyright Act of Korea, No. 

9785 (2009) (S. Kor.); Copyright (Amendment) Act, 

2012, at para. 17 (2012) (India), available at 

http://copyright.gov.in/Documents/ 

CRACT_AMNDMNT_2012.pdf. 

organizations to license numerous 

works within a specific field of use, 

including works owned by rights 

holders who are not members of the 

organization and orphan works.52 

II. Subject of Inquiry 

The Copyright Office seeks comments 

regarding the current state of play for 

orphan works, including what has 

changed in the legal and business 

environments that might be relevant to 

a resolution of the problem and what 

additional legislative, regulatory, or 

voluntary solutions deserve deliberation 

at this time. The Office has posed two 

questions below. In responding to these 

questions, a party may wish to discuss 

a number of relevant topics, including 

for example: The merits of limiting 

remedies; the interplay between orphan 

works and fair use, section 108, section 

121, or other exceptions and limitations; 

the role of licensing; the types of orphan 

works that should be implicated; the 

types of users who should benefit; the 

practical or legal hurdles to forming or 

utilizing registries; international 

implications; and the relative 

importance of the Register’s plans to 

improve the quality and searchability of 

Copyright Office records. The Office 

requests that responding parties 

separately address each of the questions 

for which a response is submitted and 

provide as much specificity as possible. 

1. Orphan Works on an Occasional or 

Case-by-Case Basis 

With respect to the occasional or 

isolated use of an orphan work, how has 

the legal landscape or legal thinking 

evolved in the past four years? The 2008 

proposed legislation included several 

key components: (a) A good faith, 

reasonably diligent search for the 

copyright owner; (b) attribution to the 

author and copyright owner, if possible 

and appropriate under the 

circumstances; and (c) a limitation on 

remedies that would be available if the 

user proves that he or she conducted a 

reasonably diligent search. Good faith 

users were expected to consult the 

Copyright Office Web site for practices 

proffered by copyright owners and users 

alike under the direction and 

coordination of the Register of 

Copyrights. The legislation included 

special provisions for certain 

noncommercial actors using orphan 

works in a noncommercial manner, as a 

further attempt to reduce liability for 

those perceived to be most risk-averse 

under current law. Moreover, the 

52 See Consolidated Act on Copyright 2010, No. 

202, Art. 50–51 (2010) (Den.); see also Copyright 

Act, No. 404, §§ 13–14 (2010) (Fin.). 

wreier-aviles on DSK5TPTVN1PROD with 

Federal Register / Vol. 77, No. 204 / Monday, October 22, 2012 / Notices 64561 

legislation would have applied to all 

kinds of copyrighted works, published 

or unpublished, from photographs to 

manuscripts to music and books. Please 

comment on the continued viability of 

the above framework in the case of 

occasional uses of orphan works. If 

there are other possible approaches, 

including approaches that might best be 

described as interim approaches, please 

explain the benefits and supporting 

legal authority in sufficient detail. 

2. Orphan Works in the Context of Mass 

Digitization 

The Office’s Orphan Works Report 

did not analyze the issue of mass 

digitization in detail, and the 

subsequent 2008 proposed legislation 

did not squarely address the possibility 

of systematic or en masse copying, 

display, or distribution. Please comment 

on potential orphan works solutions in 

the context of mass digitization. How 

should mass digitization be defined, 

what are the goals and what, therefore, 

is an appropriate legal framework that is 

fair to authors and copyright owners as 

well as good faith users? What other 

possible solutions for mass digitization 

projects should be considered? 

If there are any pertinent issues not 

discussed above, the Office encourages 

interested parties to raise those matters 

in their comments. In addition, the 

Office is considering and hereby 

provides notice that it may convene one 

or more roundtables or formal hearings 

on the matters raised above in 2013. The 

Office may also publish one or more 

additional Notices of Inquiry. 

Dated: October 17, 2012. 

Maria A. Pallante, 

Register of Copyrights. 

[FR Doc. 2012–25932 Filed 10–19–12; 8:45 am] 

BILLING CODE 1410–30–P 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

[Notice 12–083] 

NASA Advisory Council; Technology 

and Innovation Committee; Meeting 

AGENCY: National Aeronautics and 


Space Administration. 


ACTION: Notice of meeting. 


SUMMARY: The National Aeronautics and 

Space Administration (NASA) 

announces a meeting of the Technology 

and Innovation Committee of the NASA 

Advisory Council (NAC). The meeting 

will be held for the purpose of 

reviewing status of the Space 

Technology programs; status of 

activities within the Office of the Chief 

Technologist; update on the Advance 

Exploration Systems program; status of 

the Hypersonic Inflatable Aerodynamic 

Decelerator project; status of the Space 

Technology Research Grants program; 

and a Mars Science Laboratory update. 

DATES: Thursday, November 15, 2012, 

8:00 a.m. to 4:00 p.m., Local Time. 

ADDRESSES: NASA Headquarters, 300 E 

Street SW., Room 2E39, Washington, DC 


20546. 


FOR FURTHER INFORMATION CONTACT: Mr. 


Mike Green, Office of the Chief 

Technologist, NASA Headquarters, 

Washington, DC 20546, (202) 358–4710, 

fax (202) 358–4078, or 

g.m.green@nasa.gov. 

SUPPLEMENTARY INFORMATION: The 

meeting will be open to the public up 

to the capacity of the room. This 

meeting is also available telephonically 

and by WebEx. Any interested person 

may call the USA toll free conference 

call number 866–804–6184, pass code 

3472886, to participate in this meeting 

by telephone. The WebEx link is 

https://nasa.webex.com/, the meeting 

number is 996 249 510, and the 

password is TICmte@1115. 

The agenda for the meeting includes 

the following topics: 

—Office of the Chief Technologist 

Update 

—Status of NASA’s Space Technology 

program 

—Briefing and overview of NASA’s 

Advanced Exploration Systems 

program 

—Update on Mars Science Laboratory 

and role of technology in mission 

—Update on Space Technology 

Research Grants program 

—Status of the Hypersonic Inflatable 

Aerodynamic Decelerator project 

It is imperative that the meeting be 

held on these dates to accommodate the 

scheduling priorities of the key 

participants. Attendees will be 

requested to sign a register and to 

comply with NASA security 

requirements, including the 

presentation of a valid picture ID, before 

receiving an access badge. U.S. Citizens 

will need to show a valid, officiallyissued picture identification such as a 

driver’s license to enter the NASA 

Headquarters building (West Lobby— 

Visitor Control Center) and must state 

that they are attending the NAC 

Technology and Innovation Committee 

meeting in room 2E39 before receiving 

an access badge. Permanent Residents 

will need to show residency status 

(valid green card) and a valid, officially 

issued picture identification such as a 

driver’s license and must state that they 

are attending the NAC Technology and 

Innovation Committee meeting in Room 

2E39 before receiving an access badge. 

U.S. Citizens and Permanent Residents 

are requested to submit their names and 

affiliation 5 working days prior to the 

meeting to Ms. Anyah Dembling via 

email at anyah.b.dembling@nasa.gov or 

by telephone at (202) 358–5195. Foreign 

Nationals must provide to NASA the 

following information: Full name; 

gender; date/place of birth; citizenship; 

social security number; green card 

information (resident alien number, 

expiration date); visa information 

(number, type, expiration date); 

passport information (number, country 

of issue, expiration date); employer/ 

affiliation information (name of 

institution, title/position, address, 

country of employer, telephone, email 

address); and the title/position of 

attendee no less than 8 working days 

prior to the meeting by contacting Ms. 

Anyah Dembling via email at 

anyah.b.dembling@nasa.gov or by 

telephone at (202) 358–5195. 

Patricia D. Rausch, 

Advisory Committee Management Officer, 

National Aeronautics and Space 

Administration. 

[FR Doc. 2012–25926 Filed 10–19–12; 8:45 am] 

BILLING CODE 7510–13–P 

NATIONAL FOUNDATION ON THE 

ARTS AND THE HUMANITIES 

President’s Committee on the Arts and 

the Humanities: Meeting #68 

AGENCY: National Endowment for the 

Arts, National Foundation on the Arts 

and Humanities. 

ACTION: Notice of Meeting. 

SUMMARY: Pursuant to section 10 (a)(2) 

of the Federal Advisory Committee Act 

(Pub. L. 92–463), as amended, notice is 

hereby given that a meeting of the 

President’s Committee on the Arts and 

the Humanities (PCAH) will be held in 

the Crystal Room, The Willard 

Intercontinental, 1401 Pennsylvania 

Avenue NW, Washington, DC 20004. 

Ending time is approximate. 

DATES: November 18, 2012 from 4:00 

p.m. to 6:00 p.m. 

FOR FURTHER INFORMATION CONTACT: 

Lindsey Clark of the President’s 

Committee at (202) 682–5409 or 

lclark@pcah.gov. 

SUPPLEMENTARY INFORMATION: The 

meeting, on Sunday, November 18th, 

will begin with welcome, introductions, 

and announcements. Updates and 

discussion on recent programs and 

activities will follow. The meeting also 

will include a review of PCAH ongoing 

wreier-aviles on DSK5TPTVN1PROD with NOTICES

71452 Federal Register / Vol. 77, No. 231 / Friday, November 30, 2012 / Notices 


Affected Public: Individuals or 

Households and Private Sector— 

businesses or other for-profits. 

Total Estimated Number of 

Respondents: 53,323. 

Total Estimated Number of 

Responses: 53,323. 

Total Estimated Annual Burden 

Hours: 11,440. 

Total Estimated Annual Other Costs 

Burden: $0. 

Dated: November 26, 2012. 

Michel Smyth, 

Departmental Clearance Officer. 

[FR Doc. 2012–29058 Filed 11–29–12; 8:45 a.m.] 

BILLING CODE 4510–FT–P 

LIBRARY OF CONGRESS 

Copyright Office 

[Docket No. 2012–10] 

Extension of Comment Period: Orphan 

Works and Mass Digitization 

AGENCY: Copyright Office, Library of 


Congress. 


ACTION: Extension of comment period. 


SUMMARY: The Copyright Office is 

extending the period of public comment 

in response to its October 22, 2012 

Notice of Inquiry requesting comments 

on issues relating to orphan works and 

mass digitization under U.S. copyright 

law. 

DATES: Comments are due by 5:00 p.m. 

EST on February 4, 2013. Reply 

comments are due by 5:00 p.m. EST on 

March 6, 2013. 

ADDRESSES: All comments and reply 

comments shall be submitted 

electronically. A comment page 

containing a comment form is posted on 

the Office Web site at http:// 

www.copyright.gov/orphan/. The Web 

site interface requires commenting 

parties to complete a form specifying 

name and organization, as applicable, 

and to upload comments as an 

attachment via a browser button. To 

meet accessibility standards, 

commenting parties must upload 

comments in a single file not to exceed 

six megabytes (MB) in one of the 

following formats: The Adobe Portable 

Document File (PDF) format that 

contains searchable, accessible text (not 

an image); Microsoft Word; 

WordPerfect; Rich Text Format (RTF); or 

ASCII text file format (not a scanned 

document). The form and face of the 

comments must include both the name 

of the submitter and organization. The 

Office will post the comments publicly 

on the Office’s Web site exactly as they 

are received, along with names and 

organizations. If electronic submission 

of comments is not feasible, please 

contact the Office at 202–707–8350 for 

special instructions. 

FOR FURTHER INFORMATION CONTACT: 

Karyn Temple Claggett, Senior Counsel, 

Office of Policy and International 

Affairs, by email at kacl@loc.gov; or 

Catherine Rowland, Senior Counsel, 

Office of Policy and International 

Affairs, by email at crowland@loc.gov; 

or contact the Copyright Office by 

telephone, at 202–707–8350. 

SUPPLEMENTARY INFORMATION: On 

October 22, 2012, the Copyright Office 

published a Notice of Inquiry inviting 

public comments on issues relating to 

orphan works and mass digitization 

under U.S. copyright law. Due to the 

number and complexity of the issues 

raised in that Notice, it appears that 

some stakeholders may need additional 

time to respond. In order to facilitate 

full and adequate public comment, the 

Office hereby extends the time for filing 

comments to 5:00 p.m. EST on February 

4, 2013. The due date for filing reply 

comments is extended to 5:00 p.m. EST 

on March 6, 2013. 

Dated: November 27, 2012. 

Maria A. Pallante, 

Register of Copyrights. 

[FR Doc. 2012–29023 Filed 11–29–12; 8:45 am] 

BILLING CODE 1410–30–P 

NATIONAL LABOR RELATIONS 

BOARD 

Sunshine Act Meetings: December 

2012 

TIME AND DATES: 

All meetings are held at 2:30 p.m. 

Tuesday, December 4; 

Wednesday, December 5; 

Thursday, December 6; 

Tuesday, December 11; 

Wednesday, December 12; 

Thursday, December 13; 

Tuesday, December 18; 

Wednesday, December 19; 

Thursday, December 20; 

Wednesday, December 26; 


Thursday, December 27. 


PLACE: Board Agenda Room, No. 11820, 


1099 14th St., NW., Washington, DC 


20570. 


STATUS: Closed. 


MATTERS TO BE CONSIDERED: Pursuant to 


§ 102.139(a) of the Board’s Rules and 


Regulations, the Board or a panel 


thereof will consider ‘‘the issuance of a 


subpoena, the Board’s participation in a 


civil action or proceeding or an 


arbitration, or the initiation, conduct, or 


disposition * * * of particular 

representation or unfair labor practice 

proceedings under section 8, 9, or 10 of 

the [National Labor Relations] Act, or 

any court proceedings collateral or 

ancillary thereto.’’ See also 5 U.S.C. 

552b(c)(10). 

CONTACT PERSON FOR MORE INFORMATION: 

Lester A. Heltzer, Executive Secretary, 

(202) 273–1067. 

Dated: November 28, 2012. 

Lester A. Heltzer, 

Executive Secretary. 

[FR Doc. 2012–29120 Filed 11–28–12; 4:15 pm] 

BILLING CODE 7545–01–P 

NATIONAL SCIENCE FOUNDATION 

Proposal Review; Notice of Meetings 

In accordance with the Federal 

Advisory Committee Act (Pub. L. 92– 

463, as amended), the National Science 

Foundation (NSF) announces its intent 

to hold proposal review meetings 

throughout the year. The purpose of 

these meetings is to provide advice and 

recommendations concerning proposals 

submitted to the NSF for financial 

support. The agenda for each of these 

meetings is to review and evaluate 

proposals as part of the selection 

process for awards. The review and 

evaluation may also include assessment 

of the progress of awarded proposals. 

The majority of these meetings will take 

place at NSF, 4201 Wilson Blvd., 

Arlington, Virginia 22230. 

These meetings will be closed to the 

public. The proposals being reviewed 

include information of a proprietary or 

confidential nature, including technical 

information; financial data, such as 

salaries; and personal information 

concerning individuals associated with 

the proposals. These matters are exempt 

under 5 U.S.C. 552b(c), (4) and (6) of the 

Government in the Sunshine Act. NSF 

will continue to review the agenda and 

merits of each meeting for overall 

compliance of the Federal Advisory 

Committee Act. 

These closed proposal review 

meetings will not be announced on an 

individual basis in the Federal Register. 

NSF intends to publish a notice similar 

to this on a quarterly basis. For an 

advance listing of the closed proposal 

review meetings that include the names 

of the proposal review panel and the 

time, date, place, and any information 

on changes, corrections, or 

cancellations, please visit the NSF Web 

site: http://www.nsf.gov/events/. This 

information may also be requested by 

telephoning, 703/292–8182. 
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7706 Federal Register / Vol. 79, No. 27 / Monday, February 10, 2014 / Notices 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 

Agency: DOL–OS. 

Title of Collection: National 

Longitudinal Study of Unemployment 

Insurance Recipients. 

OMB ICR Reference Number: 121308– 

0190–001. 

Affected Public: Individuals or 

Households. 

Total Estimated Number of 

Respondents: 2,178. 

Total Estimated Number of 

Responses: 5,695. 

Total Estimated Annual Time Burden: 

2,373 hours. 

Total Estimated Annual Other Costs 

Burden: $0. 

Dated: February 4, 2014. 

Michel Smyth, 

Departmental Clearance Officer. 

[FR Doc. 2014–02821 Filed 2–7–14; 8:45 a.m.] 

BILLING CODE 4510–23–P 

LEGAL SERVICES CORPORATION 

Notice and Request for Comments: 

LSC Merger of Service Areas in 

Louisiana 

AGENCY: Legal Services Corporation. 

ACTION: Notice and Request for 

Comments—LSC merger of the two 

service areas covering the south-central 

and southeastern region of Louisiana. 

SUMMARY: The Legal Services 

Corporation (LSC) intends to merge the 

two service areas that cover the twelve 

counties of the south-central region of 

Louisiana (including Baton Rouge) and 

the ten counties of the southeastern 

region of the state (including New 

Orleans). Grants for these individual 

service areas have been awarded to 

Southeast Louisiana Legal Services 

Corporation (SLLSC) since 2011. For 

2014, LSC awarded SLLSC three-year 

grants for these two service areas. LSC 

intends to merge the two service areas 

into one service area and to award one 

grant for the new combined service area. 

Doing so will harmonize the grant 

structure with the current delivery 

model. 

DATES: All comments must be received 

on or before the close of business on 

March 12, 2014. 

ADDRESSES: Written comments may be 

submitted to LSC by email to 

competition@lsc.gov (this is the 

preferred option); by submitting a form 

online at http://www.lsc.gov/contact-us; 

by mail to Legal Services Corporation, 

3333 K Street NW., Third Floor, 

Washington, DC 20007, Attention: 

Reginald Haley; or by fax to 202–337– 

6813. 

FOR FURTHER INFORMATION CONTACT: 

Reginald J. Haley, Office of Program 

Performance, Legal Services 

Corporation, 3333 K Street NW., 

Washington, DC 20007; or by email at 

haleyr@lsc.gov. 

SUPPLEMENTARY INFORMATION: The 

mission of LSC is to promote equal 

access to justice and to provide funding 

for high-quality civil legal assistance to 

low-income persons. Pursuant to its 

statutory authority, LSC designates 

service areas in U.S. states, territories, 

possessions, and the District of 

Columbia for which it provides grants to 

legal aid programs to provide free civil 

legal services. 

The LSC Act charges LSC with 

ensuring that ‘‘grants and contracts are 

made so as to provide the most 

economical and effective delivery of 

legal assistance to persons in both urban 

and rural areas.’’ 42 U.S.C. 2996f(a)(3). 

Merging the two Louisiana service areas 

will provide an economical and 

effective delivery approach for serving 

the legal needs of the low-income 

population and will harmonize the grant 

structure with the current delivery 

model. 

LSC provides grants through a 

competitive bidding process, which is 

regulated by 45 CFR Part 1634. In 2013, 

LSC implemented a competitive grants 

process for 2014 calendar year funding 

that included, inter alia, these Louisiana 

service areas. For 2014, LSC awarded 

SLLSC three-year grants for both of 

these service areas. LSC intends to 

merge the two service areas into a single 

service area and merge the 2014 grants 

for those service areas into a single grant 

beginning March 21, 2014. 

LSC invites public comment on this 

decision. Interested parties may submit 

comments to LSC no later than the close 

of business on March 12, 2014. More 

information about LSC can be found at: 

http://www.lsc.gov. 

Dated: February 5, 2014. 

Atitaya C. Rok, 

Staff Attorney. 

[FR Doc. 2014–02810 Filed 2–7–14; 8:45 am] 

BILLING CODE 7050–01–P 

LIBRARY OF CONGRESS 

U.S. Copyright Office 

[Docket No. 2012–12] 

Orphan Works and Mass Digitization; 

Request for Additional Comments and 

Announcement of Public Roundtables 

AGENCY: U.S. Copyright Office, Library 


of Congress. 


ACTION: Notice of Inquiry. 


SUMMARY: The U.S. Copyright Office 

will host public roundtable discussions 

and seeks further comments on 

potential legislative solutions for orphan 

works and mass digitization under U.S. 

copyright law. The meetings and 

comments will provide an opportunity 

for interested parties to address new 

legal developments as well as issues 

raised by comments provided in 

response to the Office’s previous Notice 

of Inquiry. 

DATES: The public roundtables will be 

held on March 10, 2014 from 9:00 a.m. 

to 5:00 p.m. EST and March 11, 2014 

from 9:00 a.m. to 5:00 p.m. EST. Written 

comments must be received no later 

than 5 p.m. EST on April 14, 2014. 

ADDRESSES: 

Public Roundtables 

The public roundtables will take 

place in the Copyright Office Hearing 

Room, LM—408 of the Madison 

Building of the Library of Congress, 101 

Independence Avenue SE., Washington, 

DC 20559. The Copyright Office strongly 

prefers that requests for participation be 

submitted electronically. The agendas 

and the process for submitting requests 

to participate in or observe one of these 

meetings are included on the Copyright 

Office Web site. If electronic registration 

is not feasible, please contact the Office 

at 202–707–1027. 

Public Comments 

Members of the public will have the 

opportunity to submit written 

comments following the public 

roundtable meetings. The written 

comments may address topics listed in 

this Notice of Inquiry as well as respond 

to any issues raised during the public 

meetings. All written comments should 

be submitted electronically. A comment 

form will be posted on the Copyright 

Office Web site at http://copyright.gov/ 

orphan/ no later than March 12, 2014. 

The Web site interface requires 

commenting parties to complete a form 

specifying name and organization, as 

applicable, and to upload comments as 

an attachment via a browser button. To 

meet accessibility standards, 

commenting parties must upload 
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Federal Register / Vol. 79, No. 27 / Monday, February 10, 2014 / Notices 7707 

comments in a single file not to exceed 

six megabytes (MB) in one of the 

following formats: the Adobe Portable 

Document File (PDF) format that 

contains searchable, accessible text (not 

an image); Microsoft Word; 

WordPerfect; Rich Text Format (RTF); or 

ASCII text file (not a scanned 

document). The form and face of the 

comments must include both the name 

of the submitter and organization. The 

Office will post the comments publicly 

on the Office’s Web site exactly as they 

are received, along with names and 

organizations. If electronic submission 

of comments is not feasible, please 

contact the Office at 202–707–1027 for 

special instructions. 

FOR FURTHER INFORMATION CONTACT: 

Karyn Temple Claggett, Associate 

Register of Copyrights and Director of 

Policy and International Affairs, by 

telephone at 202–707–1027 or by email 

at kacl@loc.gov, or Catherine Rowland, 

Senior Counsel for Policy and 

International Affairs, by telephone at 

202–707–1027 or by email at crowland@ 

loc.gov. 

SUPPLEMENTARY INFORMATION: 

Background: The Copyright Office is 

reviewing the issue of orphan works 1 

under U.S. copyright law in 

continuation of its previous work on the 

subject and to advise Congress on 

potential legislative solutions. As part of 

its current review, the Office is 

considering recent developments in the 

legal and business environments 

regarding orphan works in the context 

of: (1) occasional or isolated uses of 

orphan works; and (2) mass digitization. 

In October 2011, the Office published a 

Preliminary Analysis and Discussion 

document (the ‘‘Analysis’’) that 

examined various legal issues involved 

in mass digitization projects.2 

Subsequently, to assist with further 

review of the issue, the Office published 

a general Notice of Inquiry (the 

‘‘Notice’’) seeking comments from the 

public on both mass digitization and 

isolated uses of orphan works.3 The 

Notice provided background on the 

Office’s previous review of this issue in 

its January 2006 Report on Orphan 

1 ‘‘An ‘orphan work’ is an original work of 

authorship for which a good faith, prospective user 

cannot readily identify and/or locate the copyright 

owner(s) in a situation where permission from the 

copyright owner(s) is necessary as a matter of law.’’ 

Copyright Office Notice of Inquiry, Orphan Works 

and Mass Digitization, 77 FR 64555 (Oct. 22, 2012), 

available at http://www.copyright.gov/fedreg/2012/ 

77fr64555.pdf. 

2 U.S. Copyright Office, Legal Issues in Mass 

Digitization: A Preliminary Analysis and Discussion 

Document (2011), available at http:// 

www.copyright.gov/docs/massdigitization/ 

USCOMassDigitization_October2011.pdf. 

3 Notice, 77 FR 64555–61. 

Works (the ‘‘2006 Report’’),4 legislation 

proposed in 2006 and 2008,5 the Google 

Books Search and Hathitrust litigation,6 

the role of the Office and private 

registries in alleviating the orphan 

works problem, legal issues in mass 

digitization, and recent international 

developments. In 2013, the Office 

received ninety-one initial comments 

from various interested parties and 

eighty-nine reply comments. The 

Notice, comments, and background 

materials are available at the Copyright 

Office Web site. The Office now 

announces public roundtables and seeks 

further public comments to discuss new 

legal developments as well as specific 

issues raised by earlier public comments 

as it considers potential legislative 

recommendations. 

Subjects of Comments and Public 

Roundtables: After reviewing the 

comments in response to the Copyright 

Office’s prior Notice, the Office is 

interested in holding public roundtables 

to further explore the issues 

surrounding orphan works and mass 

digitization. The Office will hold the 

public roundtable discussions over the 

course of two days. The first day will 

cover the following topics: (1) The need 

for legislation in light of recent legal and 

technological developments; (2) 

defining a good faith ‘‘reasonably 

diligent search’’ standard; (3) the role of 

private and public registries; (4) the 

types of works subject to any orphan 

works legislation, including issues 

related specifically to photographs; and 

(5) the types of users and uses subject 

to any orphan works legislation. The 

second day will include discussions of 

the following topics: (1) Remedies and 

procedures regarding orphan works; (2) 

mass digitization, generally; (3) 

extended collective licensing and mass 

digitization; and (4) the structure and 

mechanics of a possible extended 

collective licensing system in the 

United States. Each of these topics is 

explained in more detail below. 

Additionally, the Office invites 

further written comments regarding the 

subjects briefly identified above and 

further explained below, including from 

parties who did not previously address 

those subjects, or those who wish to 

amplify or clarify their earlier comments 

or respond to issues raised in the public 

4 U.S. Copyright Office, Report on Orphan Works 

(2006), available at http://www.copyright.gov/ 

orphan/orphan-report-full.pdf. 5 Shawn Bentley Orphan Works Act of 2008, S. 

2913, 110th Cong. (2008); Orphan Works Act of 

2008, H.R. 5889, 110th Cong. (2008); Orphan Works 

Act of 2006, H.R. 5439, 109th Cong. (2006). 6 Authors Guild, Inc. v. HathiTrust, 902 F. Supp. 

2d 445 (S.D.N.Y. 2012); Authors Guild, Inc. v. 

Google Inc., 770 F. Supp. 2d 666 (S.D.N.Y. 2011) 

(‘‘Google I’’). 

roundtable meetings. A party choosing 

to respond to this Notice of Inquiry need 

not address every subject below, but the 

Office requests that responding parties 

clearly identify and separately address 

each subject for which a response is 

submitted. Commenters may address 

any or all of the issues identified below, 

as well as provide information on other 

aspects of these issues that are relevant 

to developing potential legislative 

solutions to the issues of orphan works 

and mass digitization. 

Day One 

Session 1: The Need for Legislation in 

Light of Recent Legal and Technological 

Developments 

The Office’s 2006 Report concluded 

that the orphan works problem was 

pervasive and provided draft legislative 

language for congressional 

consideration. Though several bills were 

introduced in 2006 and 2008,7 none of 

them ultimately were enacted. Since 

then, high-profile litigation in the 

United States brought the issue of 

orphan works back to the fore. In 

rejecting the proposed settlement 

agreement in The Authors Guild, Inc. v. 

Google Inc. in 2011, the Southern 

District Court of New York explicitly 

noted that it is Congress, and not the 

courts, who should decide how to 

resolve the issue of orphan works.8 

Recently, the same district court granted 

summary judgment to Google on 

copyright infringement claims relating 

to the Google Books Library Project, 

concluding that ‘‘Google Books provides 

significant public benefits,’’ and that its 

book scanning project constitutes fair 

use under U.S. copyright law.9 While 

the court’s ruling did find the Google 

Books mass digitization project to be fair 

use, it neither indicated how broadly 

the opinion could be used to justify 

other types of mass digitization projects 

nor did it explicitly address the issue of 

orphan works. 

Similarly, on October 10, 2012, the 

Southern District of New York also 

7 See supra note 5. 

8 Google I, 770 F. Supp. 2d at 678. ‘‘Google 

Books’’ is the larger project that includes the Google 

Books Library Project and the Google Books Partner 

Project (formerly ‘‘Google Print’’). Google 

commenced its book scanning project (then referred 

to as ‘‘Google Print Library Project’’) in 2004. In 

September 2005, the Authors Guild of America and 

five publisher members of the Association of 

American Publishers (‘‘AAP’’) sued Google for 

copyright infringement. The Google Books Partner 

Project was created when Google and the publishers 

announced a settlement agreement in October 2012. 

References to ‘‘Google Books’’ or the ‘‘Google Books 

case’’ relate to litigation surrounding the Library 

Project. 

9 Authors Guild, Inc. v. Google Inc., Case No. 05 

Civ. 8136 (DC), 2013 WL 6017130, *26 (S.D.N.Y 

Nov. 14, 2013) (‘‘Google II’’). 
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7708 Federal Register / Vol. 79, No. 27 / Monday, February 10, 2014 / Notices 

ruled that the digitization project 

undertaken by the HathiTrust Digital 

Library (‘‘HathiTrust’’) and its five 

university partners was largely 

transformative and protected by fair 

use.10 The court, however, did not 

consider the copyright claims relating to 

the HathiTrust Orphan Works Project, 

finding that the issue was not ripe for 

adjudication because the defendants 

had suspended the project shortly after 

the complaint was filed.11 

In addition to these legal 

developments, technology has 

significantly progressed since Congress 

last considered the orphan works issue. 

Since 2008, technological developments 

have arguably mitigated the orphan 

works problem via vastly improved 

search tools and database technology. 

Improved search engine technology 

allows users to locate rights holders 

(and vice versa) via image, sound, or 

video searches. Improved databases, 

such as the PLUS Registry,12 and 

database interoperability allow 

copyright rights holders to better 

publicize ownership information. Yet, 

many argue that these technologies are 

not being effectively utilized in the 

context of orphan works and a 

legislative solution remains necessary. 

In light of recent legal and 

technological developments, the Office 

is interested in discussing the current 

need for legislation to address the issues 

of orphan works and mass digitization. 

Specifically, the public roundtable 

meetings will allow participants to 

discuss whether recent legal 

developments have obviated the need 

for legislation, or whether new 

legislation would resolve or alleviate the 

concerns identified in the comments. 

Can the orphan works problem be 

resolved under existing exceptions and 

limitations contained in the current 

Copyright Act, such as fair use? Should 

this determination hinge on the type of 

use or user making use of the work? If 

legislation is deemed necessary, how 

10 HathiTrust, 902 F. Supp. 2d 445. 

11 Id. at 455–56. 

12 The PLUS Registry (the ‘‘Registry’’) is an online 

database created and operated by PLUS Coalition, 

Inc., an international group of communities 

‘‘dedicated to creating, using, distributing and 

preserving images.’’ Users may search the Registry 

to find rights and descriptive information 

(‘‘metadata’’) for any image, and to 

find current contact information for related 

creators, rights holders and institutions. Owners 

may register their images and image licenses to 

allow authorized users to find rights and 

descriptive metadata using a specific ID or image 

recognition. Plus Coalition, Inc., ‘‘About,’’https:// 

www.plusregistry.org/cgi-bin/WebObjects/ 

PlusDB.woa/1/wo/kl6vPj6TeDu1MqoK7ajbug/ 

0.107.27. The role of private and public registries 

is further discussed in Session 3, below. 

should it reflect or acknowledge recent 

developments in fair use law, if at all? 

Additionally, the Office would like to 

discuss the impact of technological 

advancements. For example, have 

improved search tools and database 

technologies mitigated the orphan 

works problem, or are these 

technologies not being effectively 

utilized in the context of orphan works? 

Session 2: Defining the Good Faith 

‘‘Reasonably Diligent Search’’ Standard 

In its 2006 Report, the Copyright 

Office recommended that Congress 

amend the Copyright Act to limit the 

remedies available against good faith 

users of orphan works after the user 

performed a generally ‘‘reasonably 

diligent search’’ to locate the owner of 

that work. The 2008 bills set forth 

certain baseline requirements such as 

searching the Office’s online records, 

and would have required users to 

consult best practices applicable to the 

work at issue. Both copyright owners 

and users would have participated in 

developing these best practices, which 

the Register of Copyrights would have 

coordinated. 

The Office is interested in discussing 

how best to define a good faith, 

reasonably diligent search in light of 

changes in the legal and technological 

environment since 2008, and whether 

improvements can be made to the 

standard set forth in the 2008 bills. 

What are the relative advantages or risks 

of flexible versus rigidly-defined search 

standards? Additionally, should the 

Office participate in developing search 

criteria or evaluating searches, and 

should regulations set forth specific 

search criteria? Moreover, what should 

be the role of community-developed 

best practices documents that may guide 

particular groups of users making 

particular types of uses, and who should 

develop these ‘‘best practices’’ 

documents? Finally, what role should 

the Office play in developing, 

monitoring, or certifying search criteria? 

Session 3: The Role of Private and 

Public Registries 

One question regarding orphan works 

is the role public and private registries 

might play in any orphan works 

solution. The most obvious of these 

registries, the Copyright Office’s own 

registration and recordation system, 

provides a wealth of copyright 

information but has limitations based on 

both technological requirements and the 

fact that registration and recordation is 

not mandatory in the United States. 

There are other registries that have 

ownership information, and there has 

been some suggestion that the Office 

should investigate enhancing 

interoperability between the Office 

system and private rights registries.13 

The Office would like to discuss the 

role registration and recordation may 

play in helping to more effectively 

mitigate the orphan works problem. For 

example, in the context of orphan 

works, how could the Office facilitate 

and incentivize owners to register their 

works and keep their ownership and 

contact information current? Should 

failure to register with the Office affect 

the orphan status of a work? How could 

any such incentives be reconciled with 

the United States’ obligations under the 

Berne Convention and other 

international instruments? Additionally, 

the Office is interested in learning more 

about the appropriate role of third party 

registries (commercial and 

noncommercial). For example, what 

could be the Office’s role in overseeing 

or certifying these third party registries? 

Would it be helpful for the Office to 

establish a registry requiring users to 

register their use of, or intent to use, 

orphan works similar to that envisioned 

in the Orphan Works Act of 2008? 14 

Does the recently-passed UK orphan 

works legislation, which envisions a key 

role for a web portal connecting 

multiple private and public Web sites 

and databases, present an attractive 

model for utilizing and organizing these 

registries in the United States? 

Session 4: Types of Works Subject to 

Orphan Works Legislation, Including 

Issues Related Specifically to 

Photographs 

As described in the Office’s previous 

Notice and many of the responding 

comments, orphan works remain a 

pervasive issue in copyright law. While 

the issue cuts across all creative sectors, 

the unique challenges posed by 

photographs have long been an obstacle 

to developing an effective orphan works 

solution. Photographs and other works 

of visual art may lack or may more 

easily become divorced from ownership 

information, especially in the age of 

social media that has largely transpired 

since Congress considered the 2008 

bills. This lack of identifying 

13 As mentioned in the Notice, the Office has 

begun digitizing its historic records and is initiating 

upgrades to its registration and recordation systems. 

These projects will facilitate public access to, and 

thus improve users’ ability to investigate, the 

copyright status of works, including the 

identification and location of copyright owners. The 

upgrades to the registration and recordation systems 

also are meant to facilitate the effective registration 

of works and recordation of documents related to 

registered works, helping to ensure that the record 

and contact information on file with the Office 

remains accurate. Notice, 77 FR 64558. 

14 H.R. 5889, 110th Cong. sec. 2(a), § 514(b)(3) 

(2008). 
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Federal Register / Vol. 79, No. 27 / Monday, February 10, 2014 / Notices 7709 

information often prevents users from 

locating or even initiating a search for 

orphaned photographs’ rights holders. 

The 2008 bills included a number of 

provisions specifically aimed at 

resolving some of the issues specific to 

photographs. 

In light of the peculiar position of 

photographs, it is important to consider 

how any orphan works solution might 

address these specific works, either by 

creating specific rules or excluding 

them altogether. Excluding photographs 

would not be a novel solution; the 

European Union recently approved an 

orphan works directive (the ‘‘Directive’’) 

that provides an exception for 

noncommercial public interest users 

making noncommercial public interest 

uses of orphan works, while providing 

a general exclusion of photographs from 

the scheme.15 

The Office is interested in discussing 

how to address the problems presented 

by certain types of works, including 

specifically photographic and visual arts 

orphan works. Should an orphan works 

solution exclude any particular type of 

work or should it include all 

copyrighted works? Would the 

exclusion of certain types of works 

substantially undermine the 

effectiveness of any orphan works 

solution? If all types of works are 

included, what (if any) special 

provisions are required to ensure that all 

copyright owners, such as 

photographers, are treated equitably 

within the legislative framework? Do 

recent developments such as the 

creation of voluntary registries, like the 

PLUS Registry,16 mitigate any of the 

earlier concerns regarding the treatment 

of photographs? 

Session 5: Types of users and uses 

subject to orphan works legislation 

The Copyright Office’s previous 

orphan works review did not 

differentiate between commercial and 

noncommercial uses and users of 

orphan works. Since then, however, 

there has been a debate regarding 

whether an orphan works solution 

should take into account the user’s 

status as either a commercial or 

noncommercial entity. For example, the 

15 Directive 2012/28/EU, of the European 

Parliament and of the Council of 25 October 2012 

on Certain Permitted Uses of Orphan Works, 

available at http://register.consilium.europa.eu/ 

doc/srv?l=EN&t=PDF&gc=true&sc=false& 

f=PE%2036%202012%20REV%202. Note, however, 

that photographs embedded in other, covered, 

works (e.g., photographs contained in books) are 

included within this scheme. Id. at art. 1(4). 

16 See Plus Coalition, Inc., supra note 12. Both the 

2008 House and Senate bills would have delayed 

implementation until after such a registry was 

developed. 

Directive provides an exception for 

noncommercial public interest users 

making noncommercial public interest 

uses of orphan works.17 Any solution 

that excludes commercial users and 

uses, however, may arguably provide an 

incomplete solution. Some have argued 

that the policy motivations behind any 

orphan works legislation logically 

should extend to commercial uses that 

may promote the underlying goals of the 

Copyright Act. The United Kingdom’s 

recently adopted orphan works 

legislation does not differentiate 

between commercial and 

noncommercial users or uses. 

The Office thus is interested in 

learning more about whether an orphan 

works solution should encompass both 

commercial and noncommercial uses. 

Should orphan works legislation apply 

equally to commercial and 

noncommercial uses and users? If not, 

how should specific types of uses and 

users be treated within the legislative 

framework? Should orphan works 

legislation be limited only to uses by 

noncommercial entities with a public 

service mission? Should these entities 

be permitted to use orphan works only 

for limited purposes such as 

preservation, or should they be able to 

broadly use orphan works to provide 

access to the public? Should 

commercial entities be able to make 

commercial use of orphan works? What 

are the relative advantages or 

disadvantages of allowing such use? 

Day Two 

Session 1: Remedies and Procedures 

Regarding Orphan Works 

The Office’s 2006 Report did not 

suggest creation of an exception to 

copyright for use of orphan works, but 

instead recommended that Congress 

limit the remedies that the copyright 

owner could seek against good faith 

users of orphan works to injunctive 

relief and ‘‘reasonable compensation’’ 

for the use of the work. The Office also 

recommended a ‘‘take-down’’ option for 

certain noncommercial users engaged in 

noncommercial activities, which was 

incorporated in the proposed 2008 

legislation. In addition to the take-down 

provision, the legislation also would 

have (1) limited remedies to good faith 

users of orphan works having performed 

a reasonably diligent search, (2) been 

applicable on a case-by-case basis, and 

(3) permitted rights holders to 

reasonable compensation, but not 

statutory damages or attorneys’ fees. The 

Senate bill would have allowed owners 

to reclaim their works by serving a 

17 See Directive, supra note 15, at art. 6(2). 

‘‘Notice of Claim of Infringement,’’ 

requiring the user to cease the 

infringement and negotiate in good faith 

with the rights holder.18 

The appropriate structure and scope 

of remedies continues to be a significant 

issue of concern for both copyright 

owners and potential users of orphan 

works. For example, the threat and 

unpredictable nature of statutory 

damages, the need for predictability and 

reasonableness in assessing damages, 

and the rights available to creators of 

derivative works based on orphan works 

are all issues that warrant further 

discussion. 

The Office is interested in discussing 

remedies and procedures in the context 

of orphan works. What remedies should 

be available where orphan works rights 

holders emerge after a third party has 

already begun to use an orphaned work? 

What rights should be available for 

creators of derivative works based on 

orphan works? What procedures should 

be put in place where these situations 

arise? Does the limitation on liability 

model still make sense in the current 

legal environment? Should orphan 

works legislation instead be re-framed 

as an exception to copyright as it is in 

an increasing number of foreign 

jurisdictions? 

Session 2: Mass Digitization, Generally 

The Office’s 2006 Report and the 2008 

proposed legislation did not consider 

the issue of mass digitization in detail. 

Although mass digitization was ongoing 

in 2008, the practice has since become 

much more prevalent. Thus, it is 

important to understand how mass 

digitization fits into an orphan works 

solution. Because many of the 

comments submitted in response to the 

Notice indicated that the issue of mass 

digitization should be treated separately 

from the issue of orphan works, it also 

is important to understand whether 

mass digitization fits into an orphan 

works solution. 

The Copyright Office would like to 

discuss the intersection of mass 

digitization and orphan works at the 

public roundtable meetings. As a 

preliminary matter, the Office is 

interested in discussing what types of 

digitization projects should be covered 

by any legislative proposal, including 

the scope of activities that can be 

accurately described as ‘‘mass 

digitization.’’ Additionally, it is 

important to review the relative risks 

and benefits of mass digitization 

projects. The Office would like to 

discuss the types of entities that might 

18 S. 2913, 110th Cong. sec. 2(a) § 514(c)(1)(B), 

514(b)(1)(A) (2008). 
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7710 Federal Register / Vol. 79, No. 27 / Monday, February 10, 2014 / Notices 

be able to engage in such activities 

under any legislative proposal, and the 

types or categories of works that should 

be covered. Moreover, under what 

circumstances should mass digitization 

projects proceed and how may digitized 

materials be used? How might any mass 

digitization solution differ from that of 

a general orphan works solution? Would 

potential solutions developed in the 

context of mass digitization ameliorate 

the issue of orphan works? How might 

these potential solutions interact? 

Session 3: Extended Collective 

Licensing and Mass Digitization 

Several foreign countries have laws 

that address mass digitization in 

different ways. For example, recentlypassed legislation in the United 

Kingdom creates a bifurcated approach 

allowing certain types of individual 

uses of orphan works and mass 

digitization.19 There, individual or 

occasional users of orphan works may 

apply for a non-exclusive license from 

a centralized government or 

government-sanctioned private agency 

on payment of a license fee held in 

escrow should rights holders reemerge.20 Users also must perform a 

diligent search for the rights holder, 

which must be verified by the 

authorizing body before a license will be 

issued.21 Cultural institutions engaging 

in mass digitization, on the other hand, 

may digitize works (including orphan 

works) in their existing collections 

through an extended collective licensing 

regime.22 The licenses granted are not 

exclusive and all rights holders have the 

right to opt out of any license.23 

Hungary has adopted a similar two-tier 

orphan works solution.24 Several Nordic 

19 See Enterprise and Regulatory Reform Act, 

2013, c. 24, § 77, available at http:// 

www.legislation.gov.uk/ukpga/2013/24/section/77. 

20 Id. 

21 Id. 

22 Id. In extended collective licensing models, 

representatives of copyright owners and 

representatives of users negotiate terms that are 

binding on all members of the group by operation 

of law (e.g., all textbook publishers), unless a 

particular copyright owner opts out. Extended 

collective licensing regimes authorize the grant of 

broad licenses to make specified uses of incopyright works for which it would be unduly 

expensive to clear rights on a work-by-work basis 

(e.g., mass digitization of in-copyright works, 

photocopying in-copyright articles in library 

settings). The government or a trusted designee 

typically administers payments. It is not quite 

compulsory licensing in that the parties (rather than 

the government) negotiate the rates, but it 

nevertheless requires a legislative framework and 

often involves some degree of government 

oversight. See Notice, 77 FR 64559. 

23 Enterprise and Regulatory Reform Act 2013 at 

Section 77. 

24 100/2009 (V. 8) Korm. rendelet az a ́rva mu ̈ 

egyes felhaszna ́la ́sainak engede ́lyeze ́se ́re vonatkozo ́ 

re ́szletes szaba ́lyokro ́l (Government Regulation on 

countries also have adopted extended 

collective licensing regimes for limited 

types of works and uses in the context 

of mass digitization.25 

The Office is interesting in reviewing 

the option of extended collective 

licensing for purposes of mass 

digitization in detail. For example, the 

Office is interested in discussing 

whether the United States should look 

abroad to foreign extended collective 

licensing approaches for ideas on 

domestic action on the issue of mass 

digitization. If so, which approach or 

components of any particular approach 

present attractive options for a potential 

U.S. course of action? Should such a 

system include both commercial and 

noncommercial uses, or be limited to 

noncommercial entities? How do 

extended collective licensing systems 

work in practice in the countries where 

they have been adopted? Are there 

statistics or any longitudinal data 

regarding the success of extended 

collective licensing regimes, particularly 

vis-a`-vis orphan works and mass 

digitization, around the world? Further, 

would the U.S. political, legal, and 

market structures, which can be quite 

different from foreign counterparts, 

support an extended collective 

licensing-type solution? 

Session 4: The Structure and Mechanics 

of a Possible Extended Collective 

Licensing System in the United States 

Extended collective licensing systems 

exist where representatives of copyright 

owners and users negotiate terms that 

are binding on both members and 

similarly situated non-members of the 

group by operation of law, unless an 

interested copyright rights holder elects 

to opt out. Collective management 

organizations function by establishing, 

collecting, and distributing these license 

fees. These organizations typically are 

sanctioned or overseen by the 

government. Where these organizations 

collect licensing fees relating to orphan 

works, they typically hold these fees 

until the owner emerges to collect the 

fee or for a statutorily set period of time. 

In this way, extended collective 

licensing may present an option for 

resolving many of the issues inherent in 

mass digitization projects, especially as 

they relate to the incidental digitization 

of orphan works contained in these 

digitized collections. 

the Detailed Rules Related to the Licensing of 

Certain Use of Orphan Works), arts. 2(1), 2(2), 3 

(Hung.), available at http://www.hipo.gov.hu/ 

English/jogforras/100_2009.pdf. 

25 See, e.g., Consolidated Act on Copyright 2010, 

No. 202, Art. 50–51 (2010) (Denmark); see also 

Copyright Act, No. 404, §§ 13–14 (2010) (Finland). 

While some other countries have 

embraced extended collective licensing, 

the United States currently does not 

have the legal framework for such a 

system. Nevertheless, there has been 

some discussion that extended 

collective licensing might be helpful in 

a mass digitization scenario. It is 

unclear, however, how extended 

collective licensing could integrate with 

the current U.S. legal infrastructure to 

streamline the licensing process, or 

whether it could possibly upset existing 

and well-functioning markets for certain 

copyright-protected works. Moreover, 

the mechanical operation of such a 

system is unclear; for example, 

questions remain regarding procedures 

whereby copyright rights holders may 

‘‘opt out’’ of any extended collective 

licensing regime. 

The Office is interested in discussing 

specific details of an appropriate 

extended collective licensing system in 

the United States for mass digitization 

purposes. How might an extended 

collective licensing regime be structured 

in the United States? Could an extended 

collective licensing system be 

compatible with U.S. copyright laws, 

legal norms, and industry practices? 

How much direct oversight should the 

Office or any other governmental entity 

have over the establishment, 

authorization, and/or operation of 

collective management organizations? 

Are any existing collective management 

organizations in the United States 

capable of administering an extended 

collective licensing regime for mass 

digitization? If new collective 

management organizations are created, 

should they be structured as 

government entities, nonprofit entities 

licensed and/or funded by the 

government, or commercial entities 

licensed and/or funded privately or by 

the government? 

Additionally, the Office recognizes 

that the opt-out and orphan works 

issues inherent in mass digitization 

projects are ripe for further discussion. 

For example, should rights holders be 

permitted to opt out of any extended 

collective licensing system at any time? 

How would rights holders’ ability to opt 

out affect licensees who may have made 

significant investments in the use of 

licensed works? How should orphan 

works ‘‘incidentally’’ included in a mass 

digitization project be handled? Should 

the collective management organization 

be responsible for attempting to locate 

all rights holders and, if so, should a 

‘‘reasonably diligent search’’ standard 

be applied to the organization? How 

should license fees be calculated and 

how should remuneration of authors 

and authors’ groups be handled? What 
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Federal Register / Vol. 79, No. 27 / Monday, February 10, 2014 / Notices 7711 

types of entities should be able to utilize 

an extended collective licensing system 

for mass digitization? 

Dated: February 5, 2014. 

Karyn A. Temple Claggett, 

Associate Register of Copyrights and Director 

of Policy and International Affairs. 

[FR Doc. 2014–02830 Filed 2–7–14; 8:45 am] 

BILLING CODE 1410–30–P 

NATIONAL ARCHIVES AND RECORDS 

ADMINISTRATION 

Information Security Oversight Office 

[NARA–2014–015] 

National Industrial Security Program 

Policy Advisory Committee (NISPPAC) 

AGENCY: National Archives and Records 

Administration (NARA). 

ACTION: Notice of Advisory Committee 

Meeting. 

SUMMARY: In accordance with the 

Federal Advisory Committee Act (5 

U.S.C. app 2) and implementing 

regulation 41 CFR 101–6, NARA 

announces an upcoming meeting of the 

National Industrial Security Program 

Policy Advisory Committee (NISPPAC). 

DATES: The meeting will be held on 

March 19, 2014, from 10:00 a.m. to 

12:00 p.m. 

ADDRESSES: National Archives and 

Records Administration; 700 

Pennsylvania Avenue NW., Archivist’s 

Reception Room, Room 105; 

Washington, DC 20408. 

FOR FURTHER INFORMATION CONTACT: 

David O. Best, Senior Program Analyst, 

ISOO, by mail at the above address, 

telephone (202) 357–5123, or email 

david.best@nara.gov. Contact ISOO at 

ISOO@nara.gov and the NISPPAC at 

NISPPAC@nara.gov. 

SUPPLEMENTARY INFORMATION: This 

meeting will be open to the public. 

However, due to space limitations and 

access procedures, the name and 

telephone number of individuals 

planning to attend must be submitted to 

the Information Security Oversight 

Office (ISOO) no later than Friday, 

March 14, 2014. ISOO will provide 

additional instructions for gaining 

access to the location of the meeting. 

Dated: February 5, 2014. 

Patrice Little Murray, 

Acting Committee Management Officer. 

[FR Doc. 2014–02816 Filed 2–7–14; 8:45 am] 

BILLING CODE 7515–01–P 

NUCLEAR REGULATORY 

COMMISSION 

[Docket No. NRC–2013–0239] 

Agency Information Collection 

Activities: Submission for the Office of 

Management and Budget (OMB) 

Review; Comment Request 

AGENCY: Nuclear Regulatory 

Commission. 


ACTION: Notice of the OMB review of 


information collection and solicitation 


of public comment. 


SUMMARY: The U.S. Nuclear Regulatory 

Commission (NRC) has recently 

submitted to OMB for review the 

following proposal for the collection of 

information under the provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. Chapter 35). The NRC hereby 

informs potential respondents that an 

agency may not conduct or sponsor, and 

that a person is not required to respond 

to, a collection of information unless it 

displays a currently valid OMB control 

number. The NRC published a Federal 

Register notice with a 60-day comment 

period on this information collection on 

November 8, 2013 (78 FR 67204). 

1. Type of submission, new, revision, 

or extension: Extension. 

2. The title of the information 

collection: 10 CFR part 70, ‘‘Domestic 

Licensing of Special Nuclear Material.’’ 

3. Current OMB approval number: 

3150–0009. 

4. The form number if applicable: Not 

applicable. 

5. How often the collection is 

required: On occasion. Required reports 

are collected and evaluated on a 

continuing basis as events occur. 

Applications for new licenses and 

amendments may be submitted at any 

time. Generally, renewal applications 

are submitted every 10 years and for 

major fuel cycle facilities updates of the 

safety demonstration section are 

submitted every 2 years. Nuclear 

material control and accounting 

information is submitted in accordance 

with specified instructions. 

6. Who will be required or asked to 

report: Applicants for and holders of 

specific NRC licenses to receive title to, 

own, acquire, deliver, receive, possess, 

use, or initially transfer special nuclear 

material. 

7. An estimate of the number of 

annual responses: 1,620 responses. 

8. The estimated number of annual 

respondents: 606. 

9. An estimate of the total number of 

hours needed annually to complete the 

requirement or request: 89.240.6 hours 

(81,791.1 hours reporting + 7379.4 

hours recordkeeping + 70.1 hours third 

party disclosure). 

10. Abstract: Part 70 of Title 10 of the 

Code of Federal Regulations (10 CFR), 

establishes requirements for licenses to 

own, acquire, receive, possess, use, and 

transfer special nuclear material. The 

information in the applications, reports, 

and records is used by NRC to make 

licensing and other regulatory 

determinations concerning the use of 

special nuclear material. 

The public may examine and have 

copied for a fee publicly-available 

documents, including the final 

supporting statement, at the NRC’s 

Public Document Room, Room O–1F21, 

One White Flint North, 11555 Rockville 

Pike, Rockville, Maryland 20852. The 

OMB clearance requests are available at 

the NRC’s Web site: http://www.nrc.gov/ 

public-involve/doc-comment/omb/. The 

document will be available on the 

NRC’s home page site for 60 days after 

the signature date of this notice. 

Comments and questions should be 

directed to the OMB reviewer listed 

below by March 12, 2014. Comments 

received after this date will be 

considered if it is practical to do so, but 

assurance of consideration cannot be 

given to comments received after this 

date. 

Danielle Y. Jones, Desk Officer, Office of 

Information and Regulatory Affairs 

(3150–0009), NEOB–10202, Office of 

Management and Budget, 

Washington, DC 20503. 

Comments can also be emailed to 

Danielle_Y_Jones@omb.eop.gov or 

submitted by telephone at 202–395– 

1741. 

The Acting NRC Clearance Officer is 

Kristen Benney, telephone: 301–415– 

6355. 

Dated at Rockville, Maryland, this 4th day 

of February, 2014. 

For the Nuclear Regulatory Commission. 

Kristen Benney, 

Acting NRC Clearance Officer, Office of 

Information Services. 

[FR Doc. 2014–02748 Filed 2–7–14; 8:45 am] 

BILLING CODE 7590–01–P 

NUCLEAR REGULATORY 

COMMISSION 

[NRC–2014–0001] 

Sunshine Act Meeting Notice 

DATE: Weeks of February 10, 17, 24, 

March 3, 10, 17, 2014. 


PLACE: Commissioners’ Conference 


Room, 11555 Rockville Pike, Rockville, 


Maryland. 


STATUS: Public and Closed. 
mstockstill on DSK4VPTVN1PROD with NOTICES


18932 Federal Register / Vol. 79, No. 65 / Friday, April 4, 2014 / Notices 

INTERNATIONAL TRADE 

COMMISSION 

[Investigation No. 337–TA–906] 

Certain Standard Cell Libraries, 

Products Containing or Made Using 

the Same, Integrated Circuits Made 

Using the Same, and Products 

Containing Such Integrated Circuits: 

Commission Decision Not To Review 

Granting Complainant’s Motion To 

Amend the Complaint and Notice of 

Investigation 

AGENCY: U.S. International Trade 


Commission. 


ACTION: Notice. 


SUMMARY: Notice is hereby given that 

the U.S. International Trade 

Commission has determined not to 

review an initial determination (‘‘ID’’) 

(Order No. 10) of the presiding 

administrative law judge (‘‘ALJ’’) 

granting complainant’s motion to amend 

the complaint and notice of 

investigation in the above-captioned 

investigation. 

FOR FURTHER INFORMATION CONTACT: 

Clint Gerdine, Esq., Office of the 

General Counsel, U.S. International 

Trade Commission, 500 E Street SW., 

Washington, DC 20436, telephone (202) 

708–2310. Copies of non-confidential 

documents filed in connection with this 

investigation are or will be available for 

inspection during official business 

hours (8:45 a.m. to 5:15 p.m.) in the 

Office of the Secretary, U.S. 

International Trade Commission, 500 E 

Street SW., Washington, DC 20436, 

telephone (202) 205–2000. General 

information concerning the Commission 

may also be obtained by accessing its 

Internet server at http://www.usitc.gov. 

The public record for this investigation 

may be viewed on the Commission’s 

electronic docket (EDIS) at http:// 

edis.usitc.gov. Hearing-impaired 

persons are advised that information on 

this matter can be obtained by 

contacting the Commission’s TDD 

terminal on (202) 205–1810. 

SUPPLEMENTARY INFORMATION: The 

Commission instituted this investigation 

on January 24, 2014, based on a 

complaint filed by Tela Innovations, 

Inc. (‘‘Tela’’) of Los Gatos, California. 79 

FR 4175–76. The complaint alleges 

violations of section 337 of the Tariff 

Act of 1930, as amended, 19 U.S.C. 

1337, in the importation into the United 

States, the sale for importation, and the 

sale within the United States after 

importation of certain standard cell 

libraries, products containing or made 

using the same, integrated circuits made 

using the same, and products containing 

such integrated circuits by reason of 

infringement of certain claims of U.S. 

Patent No. 8,490,043. The complaint 

further alleges the existence of a 

domestic industry. The Commission’s 

notice of investigation named Taiwan 

Semiconductor Manufacturing 

Company, Limited of Hsinchu, Taiwan 

and TSMC North America of San Jose, 

California (collectively, ‘‘TSMC’’) as 

respondents. The Office of Unfair 

Import Investigations was also named as 

a party. 

On January 30, 2014, Tela moved to 

amend the complaint and notice of 

investigation to add allegations of 

violation of section 337 by reason of 

infringement of certain claims of U.S. 

Patent No. 8,635,583. The Commission 

investigative attorney and TSMC 

opposed the motion, and Tela filed a 

reply to their oppositions. 

On March 13, 2014, the ALJ issued 

the subject ID granting the motion to 

amend the complaint and notice of 

investigation. No party petitioned for 

review of the ID. The Commission has 

determined not to review this ID. 

The authority for the Commission’s 

determination is contained in section 

337 of the Tariff Act of 1930, as 

amended, 19 U.S.C. 1337, and in Part 

210 of the Commission’s Rules of 

Practice and Procedure, 19 CFR part 

210. 

By order of the Commission. 

Issued: April 1, 2014. 

Lisa R. Barton, 

Acting Secretary to the Commission. 

[FR Doc. 2014–07570 Filed 4–3–14; 8:45 am] 

BILLING CODE 7020–02–P 

LIBRARY OF CONGRESS 

U.S. Copyright Office 

[Docket No. 2012–12] 

Extension of Comment Period: Orphan 

Works and Mass Digitization: Request 

for Additional Comments 

AGENCY: U.S. Copyright Office, Library 


of Congress. 


ACTION: Extension of comment period. 


SUMMARY: The U.S. Copyright Office is 


extending the deadline for public 


comments that address topics listed in 


the Office’s February 10, 2014 Notice of 


Inquiry and that respond to any issues 


raised during the public roundtables 


held in Washington, DC, on March 10– 


11, 2014. 


DATES: Comments are now due May 21, 


2014 by 5:00 p.m. EDT. 


ADDRESSES: All comments and reply 


comments shall be submitted 


electronically. A page containing a 

comment form is posted on the Office 

Web site at http://www.copyright.gov/ 

orphan/. The Web site interface requires 

commenting parties to complete a form 

specifying name and organization, as 

applicable, and to upload comments as 

an attachment via a browser button. To 

meet accessibility standards, 

commenting parties must upload 

comments in a single file not to exceed 

six megabytes (MB) in one of the 

following formats: The Portable 

Document File (PDF) format that 

contains searchable, accessible text (not 

an image); Microsoft Word; 

WordPerfect; Rich Text Format (RTF); or 

ASCII text file format (not a scanned 

document). The form and face of the 

comments must include both the name 

of the submitter and organization. The 

Office will post the comments publicly 

on the Office’s Web site exactly as they 

are received, along with names and 

organizations. If electronic submission 

of comments is not feasible, please 

contact the Office at 202–707–1027 for 

special instructions. 

FOR FURTHER INFORMATION CONTACT: 

Karyn Temple Claggett, Associate 

Register of Copyrights and Director of 

Policy and International Affairs by 

email at kacl@loc.gov or by telephone at 

202–707–1027; or Catherine Rowland, 

Senior Counsel for Policy and 

International Affairs, by email at 

crowland@loc.gov or by telephone at 

202–707–1027. 

SUPPLEMENTARY INFORMATION: On 

February 10, 2014, the Copyright Office 

published a Notice of Inquiry 

announcing public roundtables and 

inviting additional public comments on 

potential legislative solutions for orphan 

works and mass digitization under U.S. 

copyright law. The Office held its public 

roundtables on March 10–11, 2014, 

during which various participants 

voiced a wide range of opinions. To 

enable commenters sufficient time to 

respond to issues raised during the 

March 2014 roundtables, the Office is 

extending the time for filing additional 

comments from April 14, 2014 to May 

21, 2014. 

Dated: March 31, 2014. 

Karyn Temple Claggett, 

Associate Register of Copyrights and Director 

of Policy and International Affairs. 

[FR Doc. 2014–07505 Filed 4–3–14; 8:45 am] 

BILLING CODE 1410–30–P 
orphan works and mass digitization

u.s. copyright office

appendix c commenting parties and 

roundtable participants 
 

 

 

 

Parties Who Submitted Initial Comments in Response 

to the October 22, 2012 Notice of Inquiry
 

1.	 Abbott, Waring 

2.	 Abraham, Daniel 

3.	 American Association of Independent Music 

4.	 American Association of Law Libraries; the Medical Library Association; and the 

Special Libraries Association 

5.	 American Bar Association Section of Intellectual Property Law 

6.	 American Federation of Musicians of the United States and Canada, AFL-CIO, and 

The Recording Academy 

7.	 American Intellectual Property Law Association 

8.	 American Photographic Artists 

9.	 American Society of Composers, Authors and Publishers (ASCAP) and Broadcast 

Music, Inc. (BMI) 

10.	 American Society of Illustrators Partnership 

11.	 American Society of Journalists and Authors 

12.	 American Society of Media Photographers 

13.	 Art Institute of Chicago; The J. Paul Getty Trust (operates the J. Paul Getty Museum); 

Los Angeles County Museum of Art; The Metropolitan Museum of Art; The Museum 

of Modern Art; and The Solomon R. Guggenheim Foundation (operates the Solomon 

R. Guggenheim Museum in New York, the Guggenheim Museum in Bilbao, Spain, 

and the Peggy Guggenheim Collection in Venice, Italy) 

14.	 Artists Rights Society 

15.	 ArtistsUndertheDome.org 

16.	 Association of American Publishers 

17.	 Association of Art Museum Directors 

18.	 Association of Medical Illustrators 

1
 
 

 

 

 

19. Atlantic Feature Syndicate 

20. Authors Guild 

21. Berkeley Digital Library Copyright Project 

22. Blankenhorn, Dana 

23. Buzard, Von R. 

24. Carnegie Mellon University Libraries 

25. Computer & Communications Industry Association 

26. Consortium of College & University Media Centers 

27. Cook, Walter G., Jr. 

28. Copyright Alliance 

29. Copyright Clearance Center, Inc. 

30. Council of University Librarians at the University of California 

31. Croxton, Matthew David 

32. Dance Heritage Coalition 

33. David Sanger Photography LLC 

34. Devorah, Carrie 

35. Digital Media Association 

36. Directors Guild of America, Inc. and Writers Guild of America, West, Inc. 

37. Drucker, Philip 

38. Dufresne, Walter 

39. Duke University Libraries 

40. Electronic Frontier Foundation and Public Knowledge 

41. Emison, David Erik 

2
 
 

 

 

 

 

42.	 Emory University Libraries 

43.	 Films Around the World, Inc. 

44.	 Future of Music Coalition 

45.	 Gerrity Medical Art 

46.	 Giordano, Michael 

47.	 Google Inc. 

48.	 Graphic Artists Guild 

49.	 Hall, Victoria K. 

50.	 Illustrators’ Partnership of America 

51.	 Independent Film & Television Alliance 

52.	 Internet Archive 

53.	 Institute for Intellectual Property and Social Justice 

54.	 International Association of Scientific, Technical and Medical Publishers 

55.	 International Documentary Association; Film Independent; Independent Filmmaker 

Project; Kartemquin Educational Films, Inc.; National Alliance for Media Arts and 

Culture; Gilda Brasch; Kelly Duane de la Vega of Loteria Films; Katie Galloway; 

Roberto Hernandez; Karen Olson of Sacramento Video Industry Professionals; 

Marjan Safinia of Merge Media; and Geoffrey Smith of Eye Line Films 

56.	 Jarrell, Debora 

57.	 Kane, Chris 

58.	 Lampi, Michael 

59.	 Lehman, Bruce 

60.	 Library of Congress 

61.	 Library Copyright Alliance (including the American Library Association, the 

Association of College and Research Libraries, and the Association of Research 

Libraries) 

3
 
 

 

 

 

 

 

 

62.	 Mackie, Jane Beasley 

63.	 Magazine Publishers of America 

64.	 Massachusetts Institute of Technology Libraries 

65.	 McHugh, Thomas 

66.	 Microsoft Corporation 

67.	 Motion Picture Association of America, Inc. 

68.	 Museum of Fine Arts, Boston 

69.	 National Music Publishers’ Association and The Harry Fox Agency 

70.	 National Press Photographers Association 

71.	 National Writers Union 

72.	 North Carolina State University Libraries 

73.	 Ohmart, Ben 

74.	 Pangasa, Maneesh 

75.	 Perry4Law 

76.	 Picture Archive Council of America, Inc. (PACA) 

77.	 Professional Photographers of America 

78.	 Pro-Imaging.org 

79.	 Recording Industry Association of America 

80.	 Rutgers University Libraries 

81.	 Science Fiction and Fantasy Writers of America, Inc. 

82.	 Screen Actors Guild-American Federation of Television and Radio Artists (SAGAFTRA) 

83.	 SESAC, Inc. 

84.	 Singer, Andrew B. 

4
 
 

 

85. Society of American Archivists 

86. Software & Information Industry Association 

87. Stein, Gregory Scott 

88. Tanner, Kim 

89. University of Michigan 

90. University of North Carolina-Chapel Hill 

91. Zimmerman, Jill 

5
 
 

 

Parties Who Submitted Reply Comments in Response 

to the October 22, 2012 Notice of Inquiry 

1. American Society of Illustrators Partnership 

2. American Society of Media Photographers 

3. Association of American Publishers 

4. Berkeley Digital Library Copyright Project 

5. Brown, Bridget C. 

6. Brown, Simon 

7. Calcaterra, Garrett 

8. Cameron, Laura 

9. Carlson, Jeannie 

10. Carnegie Mellon University 

11. Center for Democracy & Technology 

12. Clift, Elayne G. 

13. Cole, Brandon 

14. College Art Association 

15. Columbia Law School, Kernochan Center for Law, Media and the Arts 

16. Competitive Enterprise Institute 

17. Copyright Alliance 

18. Croxton, Matthew David 

19. Davidson, Susan M. “Sunny” 

20. Directors Guild of America, Inc. and Writers Guild of America, West, Inc. 

21. Doniger / Burroughs APC 

22. Dubrowski, Ken 

6
 
 

 

 

23.	 Elliott-Mace, Patrice 

24.	 Elsa Peterson Ltd 

25.	 Elwell, David 

26.	 Feldman, Jay 

27.	 Fisher, Richard 

28.	 Five Birds Publishing/Productions/Industries 

29.	 Foley, Sylvia 

30.	 Future of Music Coalition 

31.	 Getty Images 

32.	 Gimlet Eye Books 

33.	 Ginger, Ann Fagan 

34.	 Google Inc. 

35.	 Gormandy, Karen 

36.	 Gorski, Paul 

37.	 Graphic Artists Guild 

38.	 Hoffman, Ann 

39.	 Hopper, Thomas 

40.	 Hulse, Dean 

41.	 Illustrators’ Partnership of America 

42.	 Intellectual Property Owners Association 

43.	 International Documentary Association; Film Independent; National Alliance for 

Media Arts and Culture; Kartemquin Educational Films, Inc.; Glen Pitre; Tallgrass 

Film Association 

44.	 Kagan, Mya 

7
 
 

 

45.	 Ladd, Tom 

46.	 Laitala, Lynn Maria 

47.	 Levesque, Kim 

48.	 Library Copyright Alliance 

49.	 Liebman, Lisa 

50.	 Littleton, Sally 

51.	 Lukowski, Jeanett 

52.	 Maute, Paula 

53.	 Mistretta, Andrea 

54.	 Molina, Lenard 

55.	 Motion Picture Association of America, Inc. and The Independent Film & Television 

Alliance 

56.	 Murphy, Roy 

57.	 Natalie Reid Associates 

58.	 National Federation of the Blind 

59.	 National Music Publishers’ Association and The Harry Fox Agency, Inc. 

60.	 National Press Photographers Association 

61.	 National Writers Union (UAW Local 1981, AFL-CIO) 

62.	 The New York Public Library 

63.	 Nylund, Alison P. 

64.	 Ostrach, Stefan 

65.	 Pappas, Alex 

66.	 Patterson, James 

67.	 Pepi, Eugene 

8
 
 

 

 

 

68. Petry, Elisabeth 

69. Photo Marketing Association International 

70. Picture Archive Council of America, Inc. (PACA) 

71. Public Knowledge and Electronic Frontier Foundation 

72. Rhoads, Susan 

73. Rhodes, Chris 

74. Rob Coppolillo Writing 

75. Science Fiction and Fantasy Writers of America, Inc. 

76. Sirabian, Karen 

77. Smithsonian Institution 

78. Software & Information Industry Association 

79. Spafford, John M. 

80. Spencer, Linda 

81. Suddeth, Charles 

82. Tokunaga, Christine Marie 

83. Tulane University Law School 

84. Weinstein, Ron 

85. Werner, Paul 

86. Wilson, Valorie 

87. Wintle, Carol 

88. Yancey, Victoria 

89. Zoka Institute, LLC 

9
 
 

 

 

 

Parties Who Submmitted Comments in Response 

to the February 10, 2014 Notice of Inquiry 

1. American Association of Independent Music 

2. American Association of Law Libraries 

3. American Intellectual Property Law Association 

4. American Photographic Artists 

5. American Society of Illustrators Partnership 

6. American Society of Media Photographers 

7. American Theatre Critics Association 

8. Anonymous 1 

9. Anonymous 2 

10. Aoki, Brenda Wong 

11. Art Copyright Coalition 

12. Artists Rights Society 

13. Asante, Adanze 

14. Association for Recorded Sound Collections 

15. Association of Learned and Professional Society Publishers 

16. Association of Medical Illustrators 

17. Authors Guild, Inc. 

18. Balint, Eszter 

19. Basinet, Cynthia 

20. Bellamy, Mary 

21. Benton, Steve 

22. Berger, David 

10
 
 

 

23. Black, James 

24. Bracher, Jim 

25. Bradley, Mike 

26. British Photographic Council 

27. Brooks, Tim 

28. Brown, Simon 

29. Burns, Leslie 

30. Butler, Brandon, Peter Jaszi, and Michael Carroll 

31. California Digital Library 

32. Carino, Marilyn 

33. Carroll, Michael W. 

34. Carroll, Michael W. and Creative Commons USA 

35. Cash, Rosanne 

36. Center for Democracy and Technology 

37. College Art Association 

38. Columbia Law School, Kernochan Center for Law, Media and the Arts 

39. Confurius, Martin 

40. Copyright Alliance 

41. Crowell, Rodney 

42. Culbertson, Lin 

43. Das, Kalani 

44. Davenport, Doris 

45. Dazeley, Peter 

11
 
 

 

 

46. DePofi, Rick 

47. Di Fiore, Vince 

48. Diamant, Anita Abigail 

49. Dogole, Ian 

50. East Bay Ray 

51. Emery, Dorine 

52. Epstein, Gerald 

53. Evans, Greg 

54. Family, S. Lupe 

55. Ferry, Christopher 

56. Films Around the World 

57. Ford, Joseph 

58. Ford, Karen 

59. Gallagher, Tess 

60. Gerrity, Peg 

61. Gibbs, Melvin 

62. Glass, Will 

63. Goldbetter, Larry 

64. Graphic Artists Guild 

65. Gray, Megan (1) 

66. Gray, Megan (2) 

67. Halcyon Yarn 

68. Haschke, Tracy Ostmann 

12 
69. HathiTrust Digital Library 

70. Hitchman, CV 

71. Holderness, Mike 

72. Horowitz, Shel 

73. International Association of Scientific, Technical & Medical Publishers 

74. International Documentary Association and Film Independent 

75. Izu, Mark 

76. Janzon, Tomas 

77. Kagan, Mya 

78. Kane, Terry 

79. Katz, Sue 

80. Kirwan, Larry 

81. Knobler, Daniel 

82. Lacey, Louise 

83. LaFond, Michael 

84. Leonard, Kiri Oestergaard 

85. Leventhal, John 

86. Levy, Adam Stuart 

87. Library Copyright Alliance 

88. Linden, Colin 

89. Lindgren, Michael 

90. Linn, Amy 

91. Lopresti, Robert 

13
 
 

92. Luntzel, Timothy 

93. Lustig, Ellen 

94. Marc 

95. Massachusetts Artists Leaders Coalition 

96. Massachusetts Institute of Technology (MIT) Libraries 

97. Matheson, Lisa 

98. McCraw, Jamie 

99. McRea, John 

100. Merritt, Tift 

101. Midler, Bette 

102. Miller, John Edwin 

103. Montfort, Matthew 

104. Moon, Elizabeth 

105. Motion Picture Association of America, Inc. 

106. Murphy, Roy 

107. Music Library Association 

108. National Council of Textile Organizations 

109. National Music Publishers’ Association 

110. National Press Photographers Association 

111. Nelson, Christopher Gabriel 

112. Newman, Sharlene 

113. Noonan, Sean 

114. O’Reilly, Aodhan 

14
 
 

115.	 Oleksiw, Susan 

116.	 Orner, Peter 

117.	 Ounsworth, Alec 

118.	 PACA, The Digital Media Licensing Association 

119.	 Parisi, Lynn Reznick 

120.	 Petersen, John 

121.	 Pickerell, Jim 

122.	 Pro-Imaging.org 

123.	 Professional Photographers of America; American Photographic Artists, Inc.; 

American Society of Media Photographers; Graphic Artists Guild; National Press 

Photographers Association; and PACA, The Digital Media Licensing Association 

124.	 Public Knowledge and the Electronic Frontier Foundation 

125.	 Rabben, Linda 

126.	 Reaves, Paul-Newell 

127.	 Recording Industry Association of America 

128.	 Reid, Vernon 

129.	 Ribot, Marc 

130.	 Richard, Jerome 

131.	 Rieser, Daniel 

132.	 Roche, Ted 

133.	 Rosenberg, Erez 

134.	 Rosenthal, Elizabeth J. 

135.	 Rowan, Diana 

136.	 Russell, Angelica 

15
 
 

 

 

137. Schlofner, Becky 

138. Shneider, Joshua 

139. Science Fiction and Fantasy Writers of America 

140. Shapiro, Paul 

141. Sickafoose, Todd 

142. Simon, Ruth F. 

143. Slivinski, Lucy 

144. Smith, George E. 

145. Snell, Theron 

146. Society of American Archivists 

147. Software & Information Industry Association 

148. Stace, Wesley 

149. Suddeth, Charles 

150. Thien, Kristen 

151. Tovares, Raul 

152. University of California, Los Angeles Library 

153. University of Minnesota Libraries 

154. University of North Carolina, Chapel Hill Scholarly Communications Office 

155. Urselli, Mark 

156. Wagner, Jeroen 

157. Walker, Rick 

158. Walker, Robert Kirk 

159. Wasser, Joan 

16
 
 

160. Webb Aviation 

161. Webster, Katharine 

162. Wieselman, Doug 

163. Wikimedia District of Columbia 

164. Wilson, Amanda 

165. Winterbottom, Carla 

166. Zorn, John 

17 
 

 

 

 

Participants in the March 10-11, 2014 Public Roundtables 

1.	 Adler, Allan (Association of American Publishers) 

2.	 Aiken, Paul (The Authors Guild) 

3.	 Band, Jonathan (Library Copyright Alliance) 

4.	 Barnes, Gregory (Digital Media Association) 

5.	 Besek, June (Kernochan Center for Law, Media and the Arts) 

6.	 Boyle, Patrick (University of Southern California Intellectual Property and 

Technology Law Clinic – International Documentary Association and Film 

Independent) 

7.	 Burgess, Richard (American Association of Independent Music) 

8.	 Butler, Brandon (American University, Washington College of Law) 

9.	 Capobianco, Michael (Science Fiction and Fantasy Writers of America) 

10.	 Carroll, Michael W. (American University, Washington College of Law; Creative 

Commons USA) 

11.	 Chertkof, Susan (Recording Industry Association of America) 

12.	 Cohen, Dan (Digital Public Library of America) 

13.	 Collier, Daniel (Tulane University) 

14.	 Constantine, Jan (The Authors Guild) 

15.	 Courtney, Kyle K. (Harvard University) 

16.	 Cox, Krista (Association of Research Libraries) 

17.	 Cram, Greg (The New York Public Library) 

18.	 Dessy, Blane (Library of Congress) 

19.	 Devorah, Carrie (Center for Copyright Integrity) 

20.	 Feltren, Emily (American Association of Law Libraries) 

21.	 Fertig, Rachel (Association of American Publishers) 

18
 
 

22.	 French, Alec (Directors Guild of America) 

23.	 Furlough, Mike (HathiTrust Digital Library) 

24.	 Gard, Elizabeth Townsend (Tulane University) 

25.	 Goodyear, Anne Collins (College Art Association) 

26.	 Gray, Megan (Attorney) 

27.	 Griffin, Jodie (Public Knowledge) 

28.	 Haber, Frederic (Copyright Clearance Center, Inc.) 

29.	 Hansen, David (Digital Library Copyright Project, University of California, Berkeley 

School of Law; and Law Library, University of North Carolina School of Law) 

30.	 Harbeson, Eric (Society of American Archivists) 

31.	 Hare, James (Wikimedia District of Columbia) 

32.	 Hill, Douglas (RightsAssist, LLC) 

33.	 Hoffman, Ann F. (National Writers Union) 

34.	 Holland, Brad (American Society of Illustrators Partnership) 

35.	 Jacob, Meredith (Program on Information Justice & Intellectual Property, American 

University, Washington College of Law) 

36.	 Katz, Ariel (Faculty of Law, University of Toronto) 

37.	 Kaufman, Roy (Copyright Clearance Center, Inc.) 

38.	 Klaus, Kurt R. (Attorney at Law) 

39.	 Knife, Lee (Digital Media Association) 

40.	 Kopans, Nancy (ITHAKA/JSTOR) 

41.	 Lakind, Debra (Museum of Fine Arts, Boston) 

42.	 Lehman, Bruce (Association of Medical Illustrators) 

19
 
 

 

 

 

43. Lerner, Jack (University of Southern California Intellectual Property and Technology 

Law Clinic – International Documentary Association and Film Independent) 

44.	 Levine, Melissa (University of Michigan Library) 

45.	 Love, James (Knowledge Ecology International) 

46.	 Mahoney, Jim (American Association of Independent Music) 

47.	 Matthews, Maria D. (Professional Photographers of America) 

48.	 McCormick, Patrick (University of Southern California Intellectual Property and 

Technology Law Clinic – International Documentary Association and Film 

Independent) 

49.	 McDiarmid, Andrew (Center for Democracy & Technology) 

50.	 McGehee, Alex (Association of Recorded Sound Collections) 

51.	 McSherry, Corynne (Electronic Frontier Foundation) 

52.	 Michalak, Sarah (HathiTrust Digital Library) 

53.	 Mopsik, Eugene (American Society of Media Photographers) 

54.	 Natanson, Barbara (Library of Congress) 

55.	 Osterreicher, Mickey (National Press Photographers Association) 

56.	 Penrose, Brooke (Museum of Fine Arts, Boston) 

57.	 Perlman, Victor (American Society of Media Photographers) 

58.	 Pilch, Janice T. (Rutgers University Libraries) 

59.	 Prager, Nancy C. (Prager Law PLLC) 

60.	 Prescott, Leah (Georgetown Law Library) 

61.	 Rae, Casey (Future of Music Coalition) 

62.	 Rechardt, Lauri (International Federation of the Phonographic Industry) 

63.	 Ress, Manon (Knowledge Ecology International) 

64.	 Rogers, Kelly (Johns Hopkins University Press) 

20
 
 

 

 

65. Rosenthal, Jay (National Music Publishers’ Association) 

66. Rushing, Colin (SoundExchange, Inc.) 

67. Russell, Carrie (American Library Association) 

68. Rydén, Jerker (National Library of Sweden) 

69. Sabrin, Amy (National Portrait Gallery – Smithsonian Institution) 

70. Sanders, Charles J. (Songwriters Guild of America) 

71. Schroeder, Fredric (National Federation of the Blind) 

72. Schruers, Matthew (Computer & Communications Industry Association) 

73. Sedlik, Jeff (PLUS Coalition) 

74. Shaftel, Lisa (Graphic Artists Guild) 

75. Shannon, Salley (American Society of Journalists & Authors) 

76. Sheffner, Ben (Motion Picture Association of America, Inc.) 

77. Slocum, Chuck (Writers Guild of America, West) 

78. Stein, Gregory Scott (Tulane University) 

79. Turner, Cynthia (American Society of Illustrators Partnership) 

80. Weinberg, Michael (Public Knowledge) 

81. Wolff, Nancy (PACA, The Digital Media Licensing Association) 

21
 
orphan works and mass digitization

u.s. copyright office

appendix d comparative summaries of 

u.s. orphan works legislative 

proposals 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Limitation on Remedies “(a) Notwithstanding 

sections 502 through 505, 

where the infringer: 

(1) prior to the 

commencement of the 

infringement, performed a 

good faith, reasonably 

diligent search to locate 

the owner of the infringed 

copyright and the infringer 

did not locate that owner, 

and 

(2) throughout the course 

of the infringement, 

provided attribution to the 

author and copyright 

owner of the work, if 

possible and as 

appropriate under the 

circumstances, the 

remedies for the 

infringement shall be 

limited as set forth in 

subsection (b).” 

2006 Report at 127. 

“(a) LIMITATION ON 

REMEDIES.— 

(1) CONDITIONS.— 

Notwithstanding sections 

502 through 505, in an 

action brought under this 

title for infringement of 

copyright in a work, the 

remedies for infringement 

shall be limited under 

subsection (b) if the 

infringer sustains the 

burden of proving, and the 

court finds, that— 

(A) before the infringing 

use of the work began, the 

infringer, a person acting 

on behalf of the infringer, 

or any person jointly and 

severally liable with the 

infringer for the 

infringement of the 

work— 

(i) performed and 

documented a reasonably 

diligent search in good 

faith to locate the owner of 

the infringed copyright; 

but 

(ii) was unable to locate 

the owner; and 

(B) the infringing use of 

the work provided 

attribution, in a manner 

reasonable under the 

circumstances, to the 

author and owner of the 

copyright, if known with a 

“(b) CONDITIONS FOR 

ELIGIBILITY.— 

(1) CONDITIONS.— 

(A) IN GENERAL.— 

Notwithstanding sections 

502 through 505, and 

subject to subparagraph 

(B), in a civil action 

brought under this title for 

infringement of copyright 

in a work, the remedies for 

infringement shall be 

limited in accordance with 

subsection (c) if the 

infringer— 

(i) proves by a 

preponderance of the 

evidence that before the 

infringement began, the 

infringer, a person acting 

on behalf of the infringer, 

or any person jointly and 

severally liable with the 

infringer for the 

infringement— 

(I) performed and 

documented a qualifying 

search, in good faith, for 

the owner of the infringed 

copyright; and 

(II) was unable to locate 

the owner of the infringed 

copyright; 

(ii) before using the work, 

filed with the Register of 

Copyrights a Notice of 

Use under paragraph (3); 

(iii) provided attribution, 

“(b) CONDITIONS FOR 

ELIGIBILITY.— 

(1) CONDITIONS.— 

(A) IN GENERAL.— 

Notwithstanding sections 

502 through 506, and 

subject to subparagraph 

(B), in an action brought 

under this title for 

infringement of copyright 

in a work, the remedies for 

infringement shall be 

limited in accordance with 

subsection (c) if the 

infringer— 

(i) proves by a 

preponderance of the 

evidence that before the 

infringement began, the 

infringer, a person acting 

on behalf of the infringer, 

or any person jointly and 

severally liable with the 

infringer for the 

infringement— 

(I) performed and 

documented a qualifying 

search, in good faith, to 

locate and identify the 

owner of the infringed 

copyright; and 

(II) was unable to locate 

and identify an owner of 

the infringed copyright; 

(ii) provided attribution, in 

a manner that is 

reasonable under the 

circumstances, to the legal 

“(b) CONDITIONS FOR 

ELIGIBILITY.— 

(1) CONDITIONS.— 

(A) IN GENERAL.— 

Notwithstanding sections 

502 through 506, and 

subject to subparagraph 

(B), in an action brought 

under this title for 

infringement of copyright 

in a work, the remedies for 

infringement shall be 

limited in accordance with 

subsection (c) if the 

infringer— 

(i) proves by a 

preponderance of the 

evidence that before the 

infringement began, the 

infringer, a person acting 

on behalf of the infringer, 

or any person jointly and 

severally liable with the 

infringer for the 

infringement— 

(I) performed and 

documented a qualifying 

search, in good faith, to 

locate and identify the 

owner of the infringed 

copyright; and 

(II) was unable to locate 

and identify an owner of 

the infringed copyright; 

(ii) prior to using the 

work, filed with the 

Register of Copyrights a 

Notice of Use under 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Limitation on Remedies 

(cont’d)

reasonable degree of 

certainty based on 

information obtained in 

performing the reasonably 

diligent search.” 

in a manner that is 

reasonable under the 

circumstances, to the 

owner of the infringed 

copyright, if such owner 

was known with a 

reasonable degree of 

certainty, based on 

information obtained in 

performing the qualifying 

search; 

(iv) included with the use 

of the infringing work a 

symbol or other notice of 

the use of the infringing 

work, in a manner 

prescribed by the Register 

of Copyrights; 

(v) asserts in the initial 

pleading to the civil action 

the right to claim such 

limitations; 

(vi) consents to the 

jurisdiction of United 

States district court, or 

such court holds that the 

infringer is within the 

jurisdiction of the court; 

and 

(vii) at the time of making 

the initial discovery 

disclosures required under 

Rule 26 of the Federal 

Rules of Civil Procedure, 

states with particularity 

the basis for the right to 

claim the limitations, 

including a detailed 

owner of the infringed 

copyright, if such legal 

owner was known with a 

reasonable degree of 

certainty, based on 

information obtained in 

performing the qualifying 

search; 

(iii) included with the 

public distribution, 

display, or performance of 

the infringing work a 

symbol or other notice of 

the use of the infringing 

work, the form and 

manner of which shall be 

prescribed by the Register 

of Copyrights, which 

maybe in the footnotes, 

endnotes, bottom margin, 

end credits, or in any other 

such manner as to give 

notice that the infringed 

work has been used under 

this section; 

(iv) asserts in the initial 

pleading to the civil action 

eligibility for such 

limitations; and 

(v) at the time of making 

the initial discovery 

disclosures required under 

rule 26 of the Federal 

Rules of Civil Procedure, 

states with particularity 

the basis for eligibility for 

the limitations, including a 

detailed description and 

paragraph (3); 

(iii) provided attribution, 

in a manner that is 

reasonable under the 

circumstances, to the legal 

owner of the infringed 

copyright, if such legal 

owner was known with a 

reasonable degree of 

certainty, based on 

information obtained in 

performing the qualifying 

search; 

(iv) included with the 

public distribution, 

display, or performance of 

the infringing work a 

symbol or other notice of 

the use of the infringing 

work, the form and 

manner of which shall be 

prescribed by the Register 

of Copyrights; 

(v) asserts in the initial 

pleading to the civil action 

eligibility for such 

limitations; and 

(vi) at the time of making 

the initial discovery 

disclosures required under 

rule 26 of the Federal 

Rules of Civil Procedure, 

states with particularity 

the basis for eligibility for 

the limitations, including a 

detailed description and 

documentation of the 

search undertaken in 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Limitation on Remedies 

(cont’d)

description and 

documentation of the 

search undertaken in 

accordance with paragraph 

(2)(A). 

(B) EXCEPTION.— 

Subparagraph (A) does not 

apply if, after receiving 

notice of the claim for 

infringement and having 

an opportunity to conduct 

an expeditious good faith 

investigation of the claim, 

the infringer— 

(i) fails to negotiate 

reasonable compensation 

in good faith with the 

owner of the infringed 

copyright; or 

(ii) fails to render payment 

of reasonable 

compensation in a 

reasonably timely 

manner.” 

documentation of the 

search undertaken in 

accordance with paragraph 

(2)(A) and produces 

documentation of the 

search. 

(B) EXCEPTION.— 

Subparagraph (A) does not 

apply if the infringer or a 

person acting on behalf of 

the infringer receives a 

notice of claim of 

infringement and, after 

receiving such notice and 

having an opportunity to 

conduct an expeditious 

good faith investigation of 

the claim, the infringer— 

(i) fails to engage in 

negotiation in good faith 

regarding reasonable 

compensation with the 

owner of the infringed 

copyright; or 

(ii) fails to render payment 

of reasonable 

compensation in a 

reasonably timely manner 

after reaching an 

agreement with the owner 

of the infringed copyright 

or under an order 

described in subsection 

(c)(1)(A).” 

accordance with paragraph 

(2)(A) and produces 

documentation of the 

search. 

(B) EXCEPTION.— 

Subparagraph (A) does not 

apply if, after receiving 

notice of the claim for 

infringement and having 

an opportunity to conduct 

an expeditious good faith 

investigation of the claim, 

the infringer— 

(i) fails to negotiate 

reasonable compensation 

in good faith with the 

owner of the infringed 

copyright; or 

(ii) fails to render payment 

of reasonable 

compensation in a 

reasonably timely manner 

after reaching an 

agreement with the owner 

of the infringed copyright 

or under an order 

described in subsection 

(c)(1)(A).” 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Requirements for 

Searches & Information 

to Guide Searches 

The Report identifies the 

following factors to be 

taken into consideration 

when determining if a 

search was reasonable: 

- The amount of 

identifying information on 

the copy of the work itself, 

such as an author’s name, 

copyright notice, or title. 

- Whether the work had 

been made available to the 

public. 

- The age of the work, or 

the dates on which it was 

created and made 

available to the public. 

- Whether information 

about the work can be 

found in publicly available 

records, such as the 

Copyright Office records 

or other resources. 

- Whether the author is 

still alive, or the corporate 

copyright owner still 

exists, and 

whether a record of any 

transfer of the copyright 

exists and is available to 

the user. 

- The nature and extent of 

the use, such as whether 

the use is commercial or 

noncommercial, and how 

prominently the work 

figures into the activity of 

the user. 

[from DEFINITIONS 

section] 

“(B) REQUIREMENTS FOR 

REASONABLY DILIGENT 

SEARCH.—(i) For 

purposes of paragraph (1), 

a search to locate the 

owner of an infringed 

copyright in a work— 

(I) is ‘reasonably diligent’ 

only if it includes steps 

that are reasonable under 

the circumstances to locate 

that owner in order to 

obtain permission for the 

use of the work; and 

(II) is not ‘reasonably 

diligent’ solely by 

reference to the lack of 

identifying information 

with respect to the 

copyright on the copy or 

phonorecord of the work. 

(ii) The steps referred to in 

clause (i)(I) shall 

ordinarily include, at a 

minimum, review of the 

information maintained by 

the Register of Copyrights 

under subparagraph (C). 

(iii) A reasonably diligent 

search includes the use of 

reasonably available 

expert assistance and 

reasonably available 

technology, which may 

include, if reasonable 

under the circumstances, 

“(2) REQUIREMENTS FOR 

SEARCHES.— 

(A) REQUIREMENTS FOR 

QUALIFYING SEARCHES.— 

(i) IN GENERAL.—For 

purposes of paragraph 

(1)(A)(i)(I), a search is 

qualifying if the infringer 

undertakes a diligent effort 

to locate the owner of the 

infringed copyright. 

(ii) DETERMINATION OF 

DILIGENT EFFORT.—In 

determining whether a 

search is diligent under 

this subparagraph, a court 

shall consider whether— 

(I) the actions taken in 

performing that search are 

reasonable and appropriate 

under the facts relevant to 

that search, including 

whether the infringer took 

actions based on facts 

uncovered by the search 

itself; 

(II) the infringer employed 

the applicable best 

practices maintained by 

the Register of Copyrights 

under subparagraph (B); 

and 

(III) the infringer 

performed the search 

before using the work and 

at a time that was 

reasonably proximate to 

the commencement of the 

“(2) REQUIREMENTS FOR 

SEARCHES.— 

(A) REQUIREMENTS FOR 

QUALIFYING SEARCHES.— 

(i) IN GENERAL.—A 

search qualifies under 

paragraph (1)(A)(i)(I) if 

the infringer, a person 

acting on behalf of the 

infringer, or any person 

jointly and severally liable 

with the infringer for the 

infringement, undertakes a 

diligent effort that is 

reasonable under the 

circumstances to locate the 

owner of the infringed 

copyright prior to, and at a 

time reasonably proximate 

to, the infringement. 

(ii) DILIGENT EFFORT.— 

For purposes of clause (i), 

a diligent effort— 

(I) requires, at a 

minimum— 

(aa) a search of the records 

of the Copyright Office 

that are available to the 

public through the Internet 

and relevant to identifying 

and locating copyright 

owners, provided there is 

sufficient identifying 

information on which to 

construct a search; 

(bb) a search of 

reasonably available 

sources of copyright 

“(2) REQUIREMENTS FOR 

SEARCHES.— 

(A) REQUIREMENTS FOR 

QUALIFYING SEARCHES.— 

(i) IN GENERAL.—A 

search qualifies under 

paragraph (1)(A)(i)(I) if 

the infringer, a person 

acting on behalf of the 

infringer, or any person 

jointly and severally liable 

with the infringer for the 

infringement, undertakes a 

diligent effort that is 

reasonable under the 

circumstances to locate the 

owner of the infringed 

copyright prior to, and at a 

time reasonably proximate 

to, the infringement. 

(ii) DILIGENT EFFORT.— 

For purposes of clause (i), 

a diligent effort— 

(I) requires, at a 

minimum— 

(aa) a search of the records 

of the Copyright Office 

that are available to the 

public through the Internet 

and relevant to identifying 

and locating copyright 

owners, provided there is 

sufficient identifying 

information on which to 

construct a search; 

(bb) a search of 

reasonably available 

sources of copyright 

4
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Requirements for 

Searches & Information 

to Guide Searches 

(cont’d)

2006 Report at 9-10. 

resources for which a 

charge or subscription fee 

is imposed. 

(C) INFORMATION TO 

GUIDE SEARCHES.—The 

Register of Copyrights 

shall receive, maintain, 

and make available to the 

public, including through 

the Internet, information 

from authoritative sources, 

such as industry 

guidelines, statements of 

best practices, and other 

relevant documents, that is 

designed to assist users in 

conducting and 

documenting a reasonably 

diligent search under this 

subsection. Such 

information may 

include— 

(i) the records of the 

Copyright Office that are 

relevant to identifying and 

locating copyright owners; 

(ii) other sources of 

copyright ownership 

information reasonably 

available to users; 

(iii) methods to identify 

copyright ownership 

information associated 

with a work; 

(iv) sources of reasonably 

available technology tools 

and reasonably available 

expert assistance; and 

infringement. 

(iii) LACK OF IDENTIFYING 

INFORMATION.—The fact 

that a particular copy or 

phonorecord lacks 

identifying information 

pertaining to the owner of 

the infringed copyright is 

not sufficient to meet the 

conditions under 

paragraph (1)(A)(i)(I). 

(B) INFORMATION TO 

GUIDE SEARCHES; BEST 

PRACTICES.— 

(i) STATEMENT OF BEST 

PRACTICES.—The Register 

of Copyrights shall 

maintain and make 

available to the public, 

including through the 

Internet, current 

statements of best 

practices for conducting 

and documenting a search 

under this subsection. 

(ii) CONSIDERATION OF 

RELEVANT MATERIALS 

AND STANDARDS.—In 

maintaining the statements 

of best practices required 

under clause (i), the 

Register of Copyrights 

shall, from time to time, 

consider materials and 

standards that may be 

relevant to the 

requirements for a 

qualifying search under 

authorship and ownership 

information and, where 

appropriate, licensor 

information; 

(cc) use of appropriate 

technology tools, printed 

publications, and where 

reasonable, internal or 

external expert assistance; 

and 

(dd) use of appropriate 

databases, including 

databases that are 

available to the public 

through the Internet; and 

(II) shall include any 

actions that are reasonable 

and appropriate under the 

facts relevant to the 

search, including actions 

based on facts known at 

the start of the search and 

facts uncovered during the 

search, and including a 

review, as appropriate, of 

Copyright Office records 

not available to the public 

through the Internet that 

are reasonably likely to be 

useful in identifying and 

locating the copyright 

owner. 

(iii) CONSIDERATION OF 

RECOMMENDED 

PRACTICES.—A qualifying 

search under this 

subsection shall ordinarily 

be based on the applicable 

authorship and ownership 

information and, where 

appropriate, licensor 

information; 

(cc) use of appropriate 

technology tools, printed 

publications, and where 

reasonable, internal or 

external expert assistance; 

and 

(dd) use of appropriate 

databases, including 

databases that are 

available to the public 

through the Internet; and 

(II) shall include any 

actions that are reasonable 

and appropriate under the 

facts relevant to the 

search, including actions 

based on facts known at 

the start of the search and 

facts uncovered during the 

search, and including a 

review, as appropriate, of 

Copyright Office records 

not available to the public 

through the Internet that 

are reasonably likely to be 

useful in identifying and 

locating the copyright 

owner. 

(iii) CONSIDERATION OF 

RECOMMENDED 

PRACTICES.—A qualifying 

search under this 

subsection shall ordinarily 

be based on the applicable 

5
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Requirements for 

Searches & Information 

to Guide Searches 

(cont’d)

(v) best practices for 

documenting a reasonably 

diligent search.” 

subparagraph (A).” statement of 

Recommended Practices 

made available by the 

Copyright Office and 

additional appropriate best 

practices of authors, 

copyright owners, and 

users to the extent such 

best practices incorporate 

the expertise of persons 

with specialized 

knowledge with respect to 

the type of work for which 

the search is being 

conducted. 

(iv) LACK OF IDENTIFYING 

INFORMATION.—The fact 

that, in any given 

situation,— 

(I) a particular copy or 

phonorecord lacks 

identifying information 

pertaining to the owner of 

the infringed copyright; or 

(II) an owner of the 

infringed copyright fails to 

respond to any inquiry or 

other communication 

about the work, 

shall not be deemed 

sufficient to meet the 

conditions under 

paragraph (1)(A)(i)(I). 

(v) USE OF RESOURCES FOR 

CHARGE.—A qualifying 

search under paragraph 

(1)(A)(i)(I) may require 

use of resources for which 

statement of 

Recommended Practices 

made available by the 

Copyright Office. 

(iv) LACK OF IDENTIFYING 

INFORMATION.—The fact 

that, in any given 

situation,— 

(I) a particular copy or 

phonorecord lacks 

identifying information 

pertaining to the owner of 

the infringed copyright; or 

(II) an owner of the 

infringed copyright fails to 

respond to any inquiry or 

other communication 

about the work, shall not 

be deemed sufficient to 

meet the conditions under 

paragraph (1)(A)(i)(I). 

(v) USE OF RESOURCES FOR 

CHARGE.—A qualifying 

search under paragraph 

(1)(A)(i)(I) may require 

use of resources for which 

a charge or subscription is 

imposed to the extent 

reasonable under the 

circumstances. 

(vi) EFFECT OF FOREIGN 

SEARCHES.—If a search is 

found to be qualifying 

under the laws of a foreign 

jurisdiction, and this 

search is relied upon in 

part by a U.S. infringer, a 

court may take this fact 

6
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Requirements for 

Searches & Information 

to Guide Searches 

(cont’d)

a charge or subscription is 

imposed to the extent 

reasonable under the 

circumstances. 

(B) INFORMATION TO 

GUIDE SEARCES; 

RECOMMENDED 

PRACTICES.— 

(i) STATEMENTS OF 

RECOMMENDED 

PRACTICES.—The Register 

of Copyrights shall 

maintain and make 

available to the public and, 

from time to time, update 

at least one statement of 

Recommended Practices 

for each category, or, in 

the Register’s discretion, 

subcategory of work under 

section 102(a) of this title, 

for conducting and 

documenting a search 

under this subsection. 

Such statement will 

ordinarily include 

reference to materials, 

resources, databases, and 

technology tools that are 

relevant to a search. The 

Register may maintain and 

make available more than 

one statement of 

Recommended Practices 

for each category or 

subcategory, as 

appropriate. 

(ii) CONSIDERATION OF 

into account when 

determining whether the 

U.S. search is qualifying, 

provided the foreign 

jurisdiction accepts 

qualifying U.S. searches in 

a reciprocal manner. 

(B) INFORMATION TO 

GUIDE SEARCHES; 

RECOMMENDED 

PRACTICES.— 

(i) STATEMENTS OF 

RECOMMENDED 

PRACTICES.—The Register 

of Copyrights shall 

maintain and make 

available to the public and, 

from time to time, update 

at least one statement of 

Recommended Practices 

for each category, or, in 

the Register’s discretion, 

subcategory of work under 

section 102(a) of this title, 

for conducting and 

documenting a search 

under this subsection. 

Such statement will 

ordinarily include 

reference to materials, 

resources, databases, and 

technology tools that are 

relevant to a search. The 

Register may maintain and 

make available more than 

one statement of 

Recommended Practices 

for each category or 

7
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Requirements for 

Searches & Information 

to Guide Searches 

(cont’d)

RELEVANT MATERIALS.— 

In maintaining and making 

available and, from time to 

time, updating the 

Recommended Practices 

in clause (i), the Register 

of Copyrights shall, at the 

Register’s discretion, 

consider materials, 

resources, databases, 

technology tools, and 

practices that are 

reasonable and relevant to 

the qualifying search. The 

Register shall consider any 

comments submitted to the 

Copyright Office by the 

Small Business 

Administration Office of 

Advocacy. The Register 

shall also, to the extent 

practicable, take the 

impact on copyright 

owners that are small 

businesses into 

consideration when 

modifying and updating 

best practices.” 

subcategory, as 

appropriate. 

(ii) CONSIDERATION OF 

RELEVANT MATERIALS.— 

In maintaining and making 

available and, from time to 

time, updating the 

Recommended Practices 

in clause (i), the Register 

of Copyrights shall, at the 

Register’s discretion, 

consider materials, 

resources, databases, 

technology tools, and 

practices that are 

reasonable and relevant to 

the qualifying search. The 

Register may consider any 

comments submitted to the 

Copyright Office by any 

interested stakeholders.” 

8
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Notice of Use Archive [none] [none] “(3) NOTICE OF USE 

ARCHIVE.—The Register 

of Copyrights shall create 

and maintain an archive to 

retain the Notice of Use 

filings under paragraph 

(1)(A)(i)(III). Such filings 

shall include— 

(A) the type of work being 

used, as listed in section 

102(a) of this title; 

(B) a description of the 

work; 

(C) a summary of the 

search conducted under 

paragraph (1)(A)(i)(I); 

(D) the owner, author, 

recognized title, and other 

available identifying 

element of the work, to the 

extent the infringer knows 

such information with a 

reasonable degree of 

certainty; 

(E) a certification that the 

infringer performed a 

qualifying search in good 

faith under this subsection 

to locate the owner of the 

infringed copyright; and 

(F) the name of the 

infringer and how the 

work will be used. 

Notices of Use filings 

retained under the control 

of the Copyright Office 

shall be furnished only 

[none] “(3) NOTICE OF USE 

ARCHIVE.—The Register 

of Copyrights shall create 

and maintain an archive to 

retain the Notice of Use 

filings under paragraph 

(1)(A)(i)(III). Such filings 

shall include— 

(A) the type of work being 

used, as listed in section 

102(a) of this title; 

(B) a description of the 

work; 

(C) a summary of the 

search conducted under 

paragraph (1)(A)(i)(I); 

(D) the owner, author, 

recognized title, and other 

available identifying 

element of the work to the 

extent the infringer knows 

such information with a 

reasonable degree of 

certainty; 

(E) the source of the work, 

including the library or 

archive in which the work 

was found, the publication 

in which the work 

originally appeared, the 

website from which the 

work was taken, 

(including the url and the 

date the site was 

accessed); 

(F) a certification that the 

infringer performed a 

qualifying search in good 

9
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Notice of Use Archive 

(cont’d)

under the conditions 

specified by regulations of 

the Copyright Office.” 

faith under this subsection 

to locate the owner of the 

infringed copyright; and 

(G) the name of the 

infringer and how the 

work will be used. 

Notices of Use filings 

retained under the control 

of the Copyright Office 

shall be made available to 

individuals or the public 

only under the conditions 

specified by regulations of 

the Copyright Office.” 

10
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Penalty for Failure to 

Comply with Search 

Requirements 

[none] [none] “(4) PENALTY FOR FAILURE 

TO COMPLY.—If an 

infringer fails to comply 

with any requirement 

under this subsection, the 

infringer is subject to all 

the remedies provided in 

section 502 through 505, 

subject to section 412.” 

“(3) PENALTY FOR FAILURE 

TO COMPLY.—If an 

infringer fails to comply 

with any requirement 

under this subsection, the 

infringer is not eligible for 

a limitation on remedies 

under this section.” 

“(4) PENALTY FOR FAILURE 

TO COMPLY.—If an 

infringer fails to comply 

with any requirement 

under this subsection, the 

infringer is not eligible for 

a limitation on remedies 

under this section.” 

11
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Limitations: Monetary 

Relief 

“(1) MONETARY RELIEF 

(A) no award for monetary 

damages (including actual 

damages, statutory 

damages, costs or 

attorney’s fees) shall be 

made other than an order 

requiring the infringer to 

pay reasonable 

compensation for the use 

of the infringed work; 

provided, however, that 

where the infringement is 

performed without any 

purpose of direct or 

indirect commercial 

advantage, such as 

through the sale of copies 

or phonorecords of the 

infringed work, and the 

infringer ceases the 

infringement expeditiously 

after receiving notice of 

the claim for infringement, 

no award of monetary 

relief shall be made.” 

2006 Report at 127. 

“(1) MONETARY RELIEF.— 

(A) GENERAL RULE.— 

Subject to subparagraph 

(B), an award for 

monetary relief (including 

actual damages, statutory 

damages, costs, and 

attorney’s fees) may not 

be made, other than an 

order requiring the 

infringer to pay reasonable 

compensation for the use 

of the infringed work. 

(B) EXCEPTIONS.—(i) An 

order requiring the 

infringer to pay reasonable 

compensation for the use 

of the infringed work may 

not be made under 

subparagraph (A) if— 

(I) the infringement is 

performed without any 

purpose of direct or 

indirect commercial 

advantage and primarily 

for a charitable, religious, 

scholarly, or educational 

purpose, and 

(II) the infringer ceases 

the infringement 

expeditiously after 

receiving notice of the 

claim for infringement, 

unless the copyright owner 

proves, and the court 

finds, that the infringer has 

earned proceeds directly 

attributable to the 

“(1) MONETARY RELIEF.— 

(A) GENERAL RULE.— 

Subject to subparagraph 

(B), an award for 

monetary relief (including 

actual damages, statutory 

damages, costs, and 

attorney’s fees) may not 

be made other than an 

order requiring the 

infringer to pay reasonable 

compensation to the legal 

or beneficial owner of the 

exclusive right under the 

infringed copyright for the 

use of the infringed work. 

(B) FURTHER 

LIMITATIONS.—An order 

requiring the infringer to 

pay reasonable 

compensation for the use 

of the infringed work may 

not be made under 

subparagraph (A) if the 

infringer is a nonprofit 

educational institution, 

library, or archives, or a 

public broadcasting entity 

(as defined in subsection 

(f) of section 118) and the 

infringer proves by a 

preponderance of the 

evidence that— 

(i) the infringement was 

performed without any 

purpose of direct or 

indirect commercial 

advantage, 

“(1) MONETARY RELIEF.— 

(A) GENERAL RULE.— 

Subject to subparagraph 

(B), an award for 

monetary relief (including 

actual damages, statutory 

damages, costs, and 

attorney’s fees) may not 

be made other than an 

order requiring the 

infringer to pay reasonable 

compensation to the owner 

of the exclusive right 

under the infringed 

copyright for the use of 

the infringed work. 

(B) FURTHER 

LIMITATIONS.—An order 

requiring the infringer to 

pay reasonable 

compensation for the use 

of the infringed work may 

not be made under 

subparagraph (A) if the 

infringer is a nonprofit 

educational institution, 

museum, library, archives, 

or a public broadcasting 

entity (as defined in 

subsection (f) of section 

118), or any of such 

entities’ employees acting 

within the scope of their 

employment, and the 

infringer proves by a 

preponderance of the 

evidence that— 

(i) the infringement was 

“(1) MONETARY RELIEF.— 

(A) GENERAL RULE.— 

Subject to subparagraph 

(B), an award for 

monetary relief (including 

actual damages, statutory 

damages, costs, and 

attorney’s fees) may not 

be made other than an 

order requiring the 

infringer to pay reasonable 

compensation to the owner 

of the exclusive right 

under the infringed 

copyright for the use of 

the infringed work. 

(B) FURTHER 

LIMITATIONS.—An order 

requiring the infringer to 

pay reasonable 

compensation for the use 

of the infringed work may 

not be made under 

subparagraph (A) if the 

infringer is a nonprofit 

educational institution, 

museum, library, archives, 

or a public broadcasting 

entity (as defined in 

subsection (f) of section 

118), or any of such 

entities’ employees acting 

within the scope of their 

employment, and the 

infringer proves by a 

preponderance of the 

evidence that— 

(i) the infringement was 

12
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Limitations: Monetary 

Relief (cont’d)

infringement. 

(ii) If the infringer fails to 

negotiate in good faith 

with the owner of the 

infringed work regarding 

the amount of reasonable 

compensation for the use 

of the infringed work, the 

court may award full 

costs, including a 

reasonable attorney’s fee, 

against the infringer under 

section 505, subject to 

section 412.” 

(ii) the infringement was 

primarily educational, 

religious, or charitable in 

nature, and 

(iii) after receiving notice 

of the claim for 

infringement, and after 

conducting an expeditious 

good faith investigation of 

the claim, the infringer 

promptly ceased the 

infringement, 

except that if the legal or 

beneficial owner of the 

exclusive right under the 

infringed copyright 

proves, and the court 

finds, that the infringer has 

earned proceeds directly 

attributable to the 

infringement, the portion 

of such proceeds so 

attributable may be 

awarded to such owner. 

(C) EFFECT OF 

REGISTRATION ON 

REASONABLE 

COMPENSATION.—If a 

work is registered, the 

court may, in determining 

reasonable compensation 

under this paragraph, take 

into account the value, if 

any, added to the work by 

reason of such 

registration.” 

performed without any 

purpose of direct or 

indirect commercial 

advantage; 

(ii) the infringement was 

primarily educational, 

religious, or charitable in 

nature; and 

(iii) after receiving a 

notice of claim of 

infringement, and having 

an opportunity to conduct 

an expeditious good faith 

investigation of the claim, 

the infringer promptly 

ceased the infringement.” 

performed without any 

purpose of direct or 

indirect commercial 

advantage; 

(ii) the infringement was 

primarily educational, 

religious, or charitable in 

nature; and 

(iii) after receiving a 

notice of claim of 

infringement, and having 

an opportunity to conduct 

an expeditious good faith 

investigation of the claim, 

the infringer promptly 

ceased the infringement. 

(C) EFFECT OF 

REGISTRATION ON 

REASONABLE 

COMPENSATION.—If a 

work is registered, the 

court may, in determining 

reasonable compensation 

under this paragraph, take 

into account the value, if 

any, added to the work by 

reason of such 

registration.” 

13
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Limitations: Injunctive 

Relief 

“(2) INJUNCTIVE RELIEF 

(A) in the case where the 

infringer has prepared or 

commenced preparation of 

a derivative work that 

recasts, transforms or 

adapts the infringed work 

with a significant amount 

of the infringer’s 

expression, any injunctive 

or equitable relief granted 

by the court shall not 

restrain the infringer’s 

continued preparation and 

use of the derivative work, 

provided that the infringer 

makes payment of 

reasonable compensation 

to the copyright owner for 

such preparation and 

ongoing use and provides 

attribution to the author 

and copyright owner in a 

manner determined by the 

court as reasonable under 

the circumstances; and 

(B) in all other cases, the 

court may impose 

injunctive relief to prevent 

or restrain the 

infringement in its 

entirety, but the relief shall 

to the extent practicable 

account for any harm that 

the relief would cause the 

infringer due to the 

infringer’s reliance on this 

section in making the 

“(2) INJUNCTIVE RELIEF.— 

(A) GENERAL RULE.— 

Subject to subparagraph 

(B), the court may impose 

injunctive relief to prevent 

or restrain the infringing 

use, except that, if the 

infringer has met the 

requirements of subsection 

(a), the relief shall, to the 

extent practicable, account 

for any harm that the relief 

would cause the infringer 

due to its reliance on 

having performed a 

reasonably diligent search 

under subsection (a). 

(B) SPECIAL RULE FOR NEW 

WORKS.—In a case in 

which the infringer 

recasts, transforms, adapts, 

or integrates the infringed 

work with the infringer’s 

original expression in a 

new work of authorship, 

the court may not, in 

granting injunctive relief, 

restrain the infringer’s 

continued preparation or 

use of that new work, if 

the infringer— 

(i) pays reasonable 

compensation to the owner 

of the infringed copyright 

for the use of the infringed 

work; and 

(ii) provides attribution to 

the owner of the infringed 

“(2) INJUNCTIVE RELIEF.— 

(A) GENERAL RULE.— 

Subject to subparagraph 

(B), the court may impose 

injunctive relief to prevent 

or restrain any 

infringement alleged in the 

civil action. 

(B) EXCEPTION.—In a case 

in which the infringer has 

prepared or commenced 

preparation of a work that 

recasts, transforms, adapts, 

or integrates the infringed 

work with a significant 

amount of the infringer’s 

original expression, any 

injunctive relief ordered 

by the court— 

(i) may not restrain the 

infringer’s continued 

preparation or use of that 

new work; 

(ii) shall require that the 

infringer pay reasonable 

compensation to the legal 

or beneficial owner of the 

exclusive right under the 

infringed copyright for the 

use of the infringed work; 

and 

(iii) shall require that the 

infringer provide 

attribution, in a manner 

that is reasonable under 

the circumstances, to the 

owner of the infringed 

copyright, if requested by 

“(2) INJUNCTIVE RELIEF.— 

(A) GENERAL RULE.— 

Subject to subparagraph 

(B), the court may impose 

injunctive relief to prevent 

or restrain any 

infringement alleged in the 

civil action. If the infringer 

has met the requirements 

of subsection (b), the relief 

shall, to the extent 

practicable and subject to 

applicable law, account 

for any harm that the relief 

would cause the infringer 

due to its reliance on 

subsection (b). 

(B) EXCEPTION.—In a case 

in which the infringer has 

prepared or commenced 

preparation of a new work 

of authorship that recasts, 

transforms, adapts, or 

integrates the infringed 

work with a significant 

amount of original 

expression, any injunctive 

relief ordered by the court 

may not restrain the 

infringer’s continued 

preparation or use of that 

new work, if— 

(i) the infringer pays 

reasonable compensation 

in a reasonably timely 

manner after the amount 

of such compensation has 

been agreed upon with the 

“(2) INJUNCTIVE RELIEF.— 

(A) GENERAL RULE.— 

Subject to subparagraph 

(B), the court may impose 

injunctive relief to prevent 

or restrain any 

infringement alleged in the 

civil action. If the infringer 

has met the requirements 

of subsection (b), the relief 

shall, to the extent 

practicable and subject to 

applicable law, account 

for any harm that the relief 

would cause the infringer 

due to its reliance on 

subsection (b). 

(B) EXCEPTION.—In a case 

in which the infringer has 

prepared or commenced 

preparation of a new work 

of authorship that recasts, 

transforms, adapts, or 

integrates the infringed 

work with a significant 

amount of original 

expression, any injunctive 

relief ordered by the court 

may not restrain the 

infringer’s continued 

preparation or use of that 

new work, if— 

(i) the infringer pays 

reasonable compensation 

in a reasonably timely 

manner after the amount 

of such compensation has 

been agreed upon with the 

14
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Limitations: Injunctive 

Relief (cont’d)

infringing use.” 

2006 Report at 127. 

copyright in a manner that 

the court determines is 

reasonable under the 

circumstances. 

(C) TREATMENT OF 

PARTIES NOT SUBJECT TO 

SUIT.—The limitations on 

remedies under this 

paragraph shall not be 

available to an infringer 

that asserts in an action 

under section 501(b) that 

neither it nor its 

representative acting in an 

official capacity is subject 

to suit in Federal court for 

an award of damages to 

the copyright owner under 

section 504, unless the 

court finds that such 

infringer has— 

(i) complied with the 

requirements of subsection 

(a) of this section; 

(ii) made a good faith 

offer of compensation that 

was rejected by the 

copyright owner; and 

(iii) affirmed in writing its 

willingness to pay such 

compensation to the 

copyright owner upon the 

determination by the court 

that such compensation 

was reasonable under 

paragraph (3) of this 

subsection. 

(D) CONSTRUCTION.— 

such owner. 

(C) LIMITATIONS.—The 

limitations on injunctive 

relief under subparagraphs 

(A) and (B) shall not be 

available to an infringer if 

the infringer asserts in the 

civil action that neither the 

infringer or any 

representative of the 

infringer acting in an 

official capacity is subject 

to suit in the courts of the 

United States for an award 

of damages to the legal or 

beneficial owner of the 

exclusive right under the 

infringed copyright under 

section 106, unless the 

court finds that the 

infringer— 

(i) has complied with the 

requirements of subsection 

(b); and 

(ii) has made an 

enforceable promise to 

pay reasonable 

compensation to the legal 

or beneficial owner of the 

exclusive right under the 

infringed copyright. 

(D) RULE OF 

CONSTRUCTION.—Nothing 

in subparagraph (C) shall 

be construed to authorize 

or require, and no action 

taken under such 

subparagraph shall be 

owner of the infringed 

copyright or determined 

by the court; and 

(ii) the court also requires 

that the infringer provide 

attribution, in a manner 

that is reasonable under 

the circumstances, to the 

legal owner of the 

infringed copyright, if 

requested by such owner. 

(C) LIMITATIONS.—The 

limitations on injunctive 

relief under subparagraphs 

(A) and (B) shall not be 

available to an infringer or 

a representative of the 

infringer acting in an 

official capacity if the 

infringer asserts that 

neither the infringer nor 

any representative of the 

infringer acting in an 

official capacity is subject 

to suit in the courts of the 

United States for an award 

of damages for the 

infringement, unless the 

court finds that the 

infringer— 

(i) has complied with the 

requirements of subsection 

(b); and 

(ii) pays reasonable 

compensation to the owner 

of the exclusive right 

under the infringed 

copyright in a reasonably 

owner of the infringed 

copyright or determined 

by the court; and 

(ii) the court requires that 

the infringer provide 

attribution, in a manner 

that is reasonable under 

the circumstances, to the 

legal owner of the 

infringed copyright, if 

requested by such owner; 

however 

(iii) the subsection 

(2)(B)(i)-(ii) limitation on 

injunctive relief shall not 

apply if— 

(I) the owner of the work 

is also an author of the 

work; 

(II) the owner requests 

such injunctive relief; and 

(III) the owner alleges, 

and the court so finds, that 

the infringer’s continued 

and intentional preparation 

or use of the new work 

would be prejudicial to the 

owner’s honor or 

reputation, and this harm 

is not otherwise 

compensable. 

(C) LIMITATIONS.—The 

limitations on injunctive 

relief under subparagraphs 

(A) and (B) may not be 

available to an infringer or 

a representative of the 

infringer acting in an 

15
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Limitations: Injunctive 

Relief (cont’d)

Nothing in subparagraph 

(C) shall be deemed to 

authorize or require, and 

no action taken pursuant 

to subparagraph (C) shall 

be deemed to constitute, 

an award of damages by 

the court against the 

infringer. 

(E) RIGHTS AND 

PRIVILEGES NOT 

WAIVED.—No action taken 

by an infringer pursuant to 

subparagraph (C) shall be 

deemed to waive any right 

or privilege that, as a 

matter of law, protects 

such infringer from being 

subject to suit in Federal 

court for an award of 

damages to the copyright 

owner under section 504.” 

deemed to constitute, either 

an award of damages by 

the court against the 

infringer or an 

authorization to sue a State. 

(E) RIGHTS AND 

PRIVILEGES NOT 

WAIVED.—No action taken 

by an infringer under 

subparagraph (C) shall be 

deemed to waive any right 

or privilege that, as a 

matter of law, protects the 

infringer from being 

subject to suit in the courts 

of the United States for an 

award of damages to the 

legal or beneficial owner 

of the exclusive right 

under the infringed 

copyright under section 

106.” 

timely manner after the 

amount of reasonable 

compensation has been 

agreed upon with the 

owner or determined by 

the court. 

(D) RULE OF 

CONSTRUCTION.—Nothing 

in subparagraph (C) shall 

be construed to authorize 

or require, and no action 

taken under such 

subparagraph shall be 

deemed to constitute, either 

an award of damages by 

the court against the 

infringer or an 

authorization to sue a State. 

(E) RIGHTS AND 

PRIVILEGES NOT 

WAIVED.—No action taken 

by an infringer under 

subparagraph (C) shall be 

deemed to waive any right 

or privilege that, as a 

matter of law, protects the 

infringer from being 

subject to suit in the courts 

of the United States for an 

award of damages.” 

official capacity if the 

infringer asserts that 

neither the infringer nor 

any representative of the 

infringer acting in an 

official capacity is subject 

to suit in the courts of the 

United States for an award 

of damages for the 

infringement, unless the 

court finds that the 

infringer— 

(i) has complied with the 

requirements of subsection 

(b); and 

(ii) pays reasonable 

compensation to the owner 

of the exclusive right 

under the infringed 

copyright in a reasonably 

timely manner after the 

amount of reasonable 

compensation has been 

agreed upon with the 

owner or determined by 

the court. 

(D) RULE OF 

CONSTRUCTION.—Nothing 

in subparagraph (C) shall 

be construed to authorize 

or require, and no action 

taken under such 

subparagraph shall be 

deemed to constitute, either 

an award of damages by 

the court against the 

infringer or an 

authorization to sue a State. 

16
 
 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Limitations: Injunctive 

Relief (cont’d)

(E) RIGHTS AND 

PRIVILEGES NOT 

WAIVED.—No action taken 

by an infringer under 

subparagraph (C) shall be 

deemed to waive any right 

or privilege that, as a 

matter of law, protects the 

infringer from being 

subject to suit in the courts 

of the United States for an 

award of damages. 

17
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Reasonable “[R]easonable “(3) REASONABLE [from DEFINITIONS [from DEFINITIONS [from DEFINITIONS 

Compensation compensation would equal 

what a reasonable willing 

buyer and 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 marketplace 

transactions. . . . It is not 

enough for the copyright 

owner to simply assert the 

amount for which he 

would have licensed the 

work ex post; he must 

have evidence that he or 

similarly situated 

copyright owners have 

actually licensed similar 

uses for such amount.” 

2006 Report at 116. 

COMPENSATION.—In 

establishing reasonable 

compensation under 

paragraph (1[monetary 

relief]) or (2 [injunctive 

relief]), the owner of the 

infringed copyright has the 

burden of establishing the 

amount on which a 

reasonable willing buyer 

and a reasonable willing 

seller in the positions of 

the owner and the 

infringer would have 

agreed with respect to the 

infringing use of the work 

immediately before the 

infringement began.” 

section] 

“(4) REASONABLE 

COMPENSATION.—The 

term ‘reasonable 

compensation’ means, 

with respect to a claim for 

infringement, the amount 

on which a willing buyer 

and willing seller in the 

positions of the infringer 

and the owner of the 

infringed copyright would 

have agreed with respect 

to the infringing use of the 

work immediately before 

the infringement began.” 

section] 

“(3) REASONABLE 

COMPENSATION.—The 

term ‘reasonable 

compensation’ means, 

with respect to a claim of 

infringement, the amount 

on which a willing buyer 

and willing seller in the 

positions of the infringer 

and the owner of the 

infringed copyright would 

have agreed with respect 

to the infringing use of the 

work immediately before 

the infringement began.” 

section] 

“(3) REASONABLE 

COMPENSATION.—The 

term ‘reasonable 

compensation’ means, 

with respect to a claim of 

infringement, the amount 

on which a willing buyer 

and willing seller in the 

positions of the infringer 

and the owner of the 

infringed copyright would 

have agreed with respect 

to the infringing use of the 

work immediately before 

the infringement began.” 

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Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Exclusion for Fixations [none] [none] “(d) EXCLUSION FOR “(f) EXCLUSION FOR “(f) EXCLUSION FOR 

in or on Useful Articles FIXATIONS IN OR ON 

USEFUL ARTICLES.—The 

limitations on monetary 

and injunctive relief under 

this section shall not be 

available to an infringer 

for infringements resulting 

from fixation of a work in 

or on a useful article that 

is offered for sale or other 

distribution to the public.” 

FIXATIONS IN OR ON 

USEFUL ARTICLES.—The 

limitations on remedies 

under this section shall not 

be available to an infringer 

for infringements resulting 

from fixation of a 

pictorial, graphic, or 

sculptural work in or on a 

useful article that is 

offered for sale or other 

commercial distribution to 

the public.” 

FIXATIONS IN OR ON 

USEFUL ARTICLES.—The 

limitations on remedies 

under this section shall not 

be available to an infringer 

for infringements resulting 

from fixation of a 

pictorial, graphic, or 

sculptural work in or on a 

useful article that is 

offered for sale or other 

commercial distribution to 

the public.” 

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Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Savings Clause “(c) Nothing in this 

section shall affect rights, 

limitations or defenses to 

copyright infringement, 

including fair use, under 

this title.” 

2006 Report at 127. 

“(c) PRESERVATION OF 

OTHER RIGHTS, 

LIMITATIONS, AND 

DEFENSE.—This section 

does not affect any right, 

limitation, or defense to 

copyright infringement, 

including fair use, under 

this title. If another 

provision of this title 

provides for a statutory 

license when the copyright 

owner cannot be located, 

that provision applies in 

lieu of this section.” 

“(e) PRESERVATION OF 

OTHER RIGHTS, 

LIMITATIONS, AND 

DEFENSES.—This section 

does not affect any right, 

limitation, or defense to 

copyright infringement, 

including fair use, under 

this title. If another 

provision of this title 

provides for a statutory 

license that would permit 

the infringement 

contemplated by the 

infringer if the owner of 

the infringed copyright 

cannot be located, that 

provision applies instead 

of this section.” 

“(d) PRESERVATION OF 

OTHER RIGHTS, 

LIMITATIONS, AND 

DEFENSES.—This section 

does not affect any right, 

or any limitation or 

defense to copyright 

infringement, including 

fair use, under this title. If 

another provision of this 

title provides for a 

statutory license that 

would permit the use 

contemplated by the 

infringer, that provision 

applies instead of this 

section.” 

“(d) PRESERVATION OF 

OTHER RIGHTS, 

LIMITATIONS, AND 

DEFENSES.—This section 

does not affect any right, 

or any limitation or 

defense to copyright 

infringement, including 

fair use, under this title. If 

another provision of this 

title provides for a 

statutory license that 

would permit the use 

contemplated by the 

infringer, that provision 

applies instead of this 

section.” 

20
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Derivative Works [none] “(d) COPYRIGHT FOR 

DERIVATIVE WORKS.— 

Notwithstanding section 

103(a), the infringing use 

of a work in accordance 

with this section shall not 

limit or affect the 

copyright protection for a 

work that uses the 

infringed work.” 

“(f) COPYRIGHT FOR 

DERIVATIVE WORKS AND 

COMPILATIONS.— 

Notwithstanding section 

103(a), an infringer who 

qualifies for the limitation 

on remedies afforded by 

this section with respect to 

the use of a copyrighted 

work shall not be denied 

copyright protection in a 

compilation or derivative 

work on the basis that 

such compilation or 

derivative work employs 

preexisting material that 

has been used unlawfully 

under this section.” 

“(e) COPYRIGHT FOR 

DERIVATIVE WORKS AND 

COMPILATIONS.— 

Notwithstanding section 

103(a), an infringer who 

qualifies for the limitation 

on remedies afforded by 

this section shall not be 

denied copyright 

protection in a compilation 

or derivative work on the 

basis that such 

compilation or derivative 

work employs preexisting 

material that has been 

used unlawfully under this 

section.” 

“(e) COPYRIGHT FOR 

DERIVATIVE WORKS AND 

COMPILATIONS.— 

Notwithstanding section 

103(a), an infringer who 

qualifies for the limitation 

on remedies afforded by 

this section shall not be 

denied copyright 

protection in a compilation 

or derivative work on the 

basis that such 

compilation or derivative 

work employs preexisting 

material that has been 

used unlawfully under this 

section.” 

21
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Definitions [none] “(2) DEFINITIONS; 

REQUIREMENTS FOR 

SEARCHES.— 

(A) OWNER OF INFRINGED 

COPYRIGHT.—For purposes 

of paragraph (1), the 

‘owner’ of an infringed 

copyright in a work is the 

legal or beneficial owner 

of, or any party with 

authority to grant or 

license, an exclusive right 

under section 106 

applicable to the 

infringement.” 

“(a) DEFINITIONS.—In this 

section, the following 

definitions shall apply: 

(1) MATERIALS AND 

STANDARDS.—The term 

‘materials and standards’ 

includes— 

(A) the records of the 

Copyright Office that are 

relevant to identifying and 

locating copyright owners; 

(B) sources of copyright 

ownership information 

reasonably available to 

users, including private 

databases; 

(C) industry practices and 

guidelines of associations 

and organizations; 

(D) technology tools and 

expert assistance, 

including resources for 

which a charge or 

subscription fee is 

imposed, to the extent that 

the use of such resources 

is reasonable for, and 

relevant to, the scope of 

the intended use; and 

(E) electronic databases, 

including databases that 

are available to the public 

through the Internet, that 

allow for searches of 

copyrighted works and for 

the copyright owners of 

works, including through 

text, sound, and image 

“(a) DEFINITIONS.—In this 

section, the following 

definitions shall apply: 

(1) NOTICE OF CLAIM OF 

INFRINGEMENT.— 

The term ‘notice of claim 

of infringement’ means, 

with respect to a claim of 

copyright infringement, a 

written notice sent from 

the owner of the infringed 

copyright or a person 

acting on the owner’s 

behalf to the infringer or a 

person acting on the 

infringer’s behalf, that 

includes at a minimum— 

(A) the name of the owner 

of the infringed copyright; 

(B) the title of the 

infringed work, any 

alternative titles of the 

infringed work known to 

the owner of the infringed 

copyright, or if the work 

has no title, a description 

in detail sufficient to 

identify that work; 

(C) an address and 

telephone number at 

which the owner of the 

infringed copyright or a 

person acting on behalf of 

the owner may be 

contacted; and 

(D) information 

reasonably sufficient to 

permit the infringer to 

“(a) DEFINITIONS.—In this 

section, the following 

definitions shall apply: 

(1) NOTICE OF CLAIM OF 

INFRINGEMENT.—The term 

‘notice of claim of 

infringement’ means, with 

respect to a claim of 

copyright infringement, a 

written notice sent from 

the owner of the infringed 

copyright or a person 

acting on the owner’s 

behalf to the infringer or a 

person acting on the 

infringer’s behalf, that 

includes at a minimum— 

(A) the name of the owner 

of the infringed copyright; 

(B) the title of the 

infringed work, any 

alternative titles of the 

infringed work known to 

the owner of the infringed 

copyright, or if the work 

has no title, a description 

in detail sufficient to 

identify that work; 

(C) an address and 

telephone number at 

which the owner of the 

infringed copyright or a 

person acting on behalf of 

the owner may be 

contacted; and 

(D) information 

reasonably sufficient to 

permit the infringer to 

22
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Definitions (cont’d) recognition tools. 

(2) NOTICE OF CLAIM FOR 

INFRINGEMENT.—The term 

‘notice of the claim for 

infringement’ means, with 

respect to a claim for 

copyright infringement, a 

written notice that 

includes at a minimum the 

following: 

(A) The name of the 

owner of the infringed 

copyright. 

(B) The title of the 

infringed work, any 

alternative titles of the 

infringed work known to 

the owner of the infringed 

copyright, or if the work 

has no title, a description 

in detail sufficient to 

identify it. 

(C) An address and 

telephone number at 

which the owner of the 

infringed copyright may 

be contacted. 

(D) Information from 

which a reasonable person 

could conclude that the 

owner of the infringed 

copyright’s claims of 

ownership and 

infringement are valid. 

(3) OWNER OF THE 

INFRINGED COPYRIGHT.— 

The ‘owner of the infringed 

copyright’ is the legal 

locate the infringer’s 

material in which the 

infringed work resides. 

(2) OWNER OF THE 

INFRINGED COPYRIGHT.— 

The ‘owner of the infringed 

copyright’ is the owner of 

any particular exclusive 

right under section 106 

that is applicable to the 

infringement, or any 

person or entity with the 

authority to grant or 

license such right on an 

exclusive or nonexclusive 

basis.” 

locate the infringer’s 

material in which the 

infringed work resides. 

(2) OWNER OF THE 

INFRINGED COPYRIGHT.— 

The ‘owner of the 

infringed copyright’ is the 

owner of any particular 

exclusive right under 

section 106 that is 

applicable to the 

infringement, or any 

person or entity with the 

authority to grant or 

license such right.” 

23
 
 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Definitions (cont’d) owner of the exclusive right 

under section 106 that is 

applicable to the 

infringement in question, or 

any party with the authority 

to grant or license that 

right.” 

24
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Establishment of a 

Database 

“Although the idea of a 

centralized registry of 

ownership information has 

the superficial appeal of 

efficiency, there are 

several reasons why the 

Copyright Office has 

instead recommended the 

‘ad hoc’ proposal favored 

by the majority of 

commenters. First, the 

experience with the 

registration and renewal 

system of the 1909 Act, 

which is similar to the 

registration systems 

suggested here, indicates 

that its primary flaw was 

as a ‘trap for the unwary.’ 

It is likely that the 

mandatory registration 

requirements in the 

proposed systems would 

contain similar traps. 

Second, administration 

and maintenance of such a 

system is not a simple 

task, and, based on our 

experience in operating a 

registration system, would 

entail greater costs and 

burdens than the 

proponents anticipate. 

Third, such a system 

would likely involve 

disputes over whether 

certain registrations 

covered certain works, just 

[none] “SEC. 3. DATABASE OF 

PICTORIAL, GRAPHIC, 

AND SCULPTURAL 

WORKS. 

(a) ESTABLISHMENT OF 

DATABASE.— 

(1) IN GENERAL.—The 

Register of Copyrights 

shall undertake a 

certification process for 

the establishment of an 

electronic database to 

facilitate the search for 

pictorial, graphic, and 

sculptural works that are 

subject to copyright 

protection under title 17, 

United States Code. 

(2) PROCESS AND 

STANDARDS FOR 

CERTIFICATION.—The 

process and standards for 

certification of the 

electronic database 

required under paragraph 

(1) shall be established by 

the Register of 

Copyrights, except that 

certification may not be 

granted if the electronic 

database does not 

contain— 

(A) the name of all authors 

of the work, and contact 

information for any author 

if the information is 

readily available; 

(B) the name of the 

“SEC. 3. DATABASES OF 

PICTORIAL, GRAPHIC, 

AND SCULPTURAL 

WORKS. 

The Register of 

Copyrights shall undertake 

a process to certify that 

there exist and are 

available databases that 

facilitate a user’s search 

for pictorial, graphic, and 

sculptural works that are 

subject to copyright 

protection under title 17, 

United States Code. The 

Register shall only certify 

that databases are 

available under this 

section if such databases 

are determined to be 

effective and not 

prohibitively expensive 

and include the capability 

to be searched using 1 or 

more mechanisms that 

allow for the search and 

identification of a work by 

both text and image and 

have sufficient 

information regarding the 

works to enable a potential 

user of a work to identify 

or locate the copyright 

owner or authorized agent. 

Prior to certifying that 

databases are available 

under this section, the 

Register shall determine, 

[none] 

25
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Establishment of a as there has been litigation copyright owner if to the extent practicable, 

Database (cont’d) today over the scope of 

particular copyright 

registrations. The nature 

of many copyrighted 

works, especially those 

combined with preexisting material or other 

copyrighted works, makes 

categorization difficult, 

and much of the 

anticipated efficiency of a 

centralized registry would 

be lost to squabbles over 

compliance. These 

ambiguities about the 

scope of registrations 

would diminish the 

usefulness of the registry 

to users as well, as they 

could not be sure whether 

the information in the 

registry covered the works 

or the material they wish 

to use. All of these costs, 

in our view, would delay 

effective relief to the 

orphan works problem, 

and lack needed flexibility 

to adjust to changed 

circumstances.” 

2006 Report at 105 

(footnotes omitted). 

different from the author, 

and contact information of 

the copyright owner; 

(C) the title of the 

copyrighted work, if such 

work has a title; 

(D) with respect to a 

copyrighted work that 

includes a visual image, a 

visual image of the work, 

or, if such a visual image 

is not available, a 

description sufficient to 

identify the work; 

(E) one or more 

mechanisms that allow for 

the search and identification of a work by both text 

and image; and 

(F) security measures that 

reasonably protect against 

unauthorized access to, or 

copying of, the 

information and content of 

the electronic database. 

(b) PUBLIC 

AVAILABILITY.—The 

Register of Copyrights— 

(1) shall make available to 

the public through the 

Internet a list of all 

electronic databases that 

are certified in accordance 

with this section; and 

(2) may include any 

database so certified in a 

statement of best practices 

their impact on copyright 

owners that are small 

businesses and consult 

with the Small Business 

Administration Office of 

Advocacy regarding those 

impacts. The Register 

shall consider the Office 

of Advocacy’s comments 

and respond to any 

concerns.” 

26
 
 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Establishment of a 

Database (cont’d)

established under section 

514(b)(5)(B) of title 17, 

United States Code.” 

27
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Effective Date “(d) This section shall not 

apply to any infringement 

occurring after the date 

that is ten years from date 

of enactment of this act.” 

2006 Report at 127. 

“(c) EFFECTIVE DATE.— 

The amendments made by 

this section shall apply 

only to infringing uses that 

commence on or after 

June 1, 2008.” 

“SEC. 4. EFFECTIVE 

DATE. 

(a) IN GENERAL.—With 

respect to works other 

than pictorial, graphic, and 

sculptural works, the 

amendments made by 

section 2 shall apply to 

infringements that 

commence on or after 

January 1, 2009. 

(b) PICTORIAL, GRAPHIC, 

AND SCULPTURAL 

WORKS.—With respect to 

pictorial, graphic, and 

sculptural works, the 

amendments made by 

section 2 shall— 

(1) take effect on the 

earlier of— 

(A) the date on which the 

Copyright Office certifies 

under section 3 at least 2 

separate and independent 

searchable, 

comprehensive, electronic 

databases, that allow for 

searches of copyrighted 

works that are pictorial, 

graphic, and sculptural 

works, and are available to 

the public through the 

Internet; or 

(B) January 1, 2013; and 

(2) apply to infringing 

uses that commence on or 

after that effective date. 

(c) PUBLICATION IN 

“(c) EFFECTIVE DATE.— 

(1) IN GENERAL.—The 

amendments made by this 

section shall— 

(A) take effect on the later 

of— 

(i) January 1, 2009; or 

(ii) the date which is the 

earlier of— 

(I) 30 days after the date 

on which the Copyright 

Office publishes notice in 

the Federal Register that it 

has certified under section 

3 that there exist and are 

available at least 2 

separate and independent 

searchable, electronic 

databases, that allow for 

searches of copyrighted 

works that are pictorial, 

graphic, and sculptural 

works, and are available to 

the public; or 

(II) January 1, 2013; and 

(B) apply to infringing 

uses that commence on or 

after that effective date. 

(2) DEFINITION.—In this 

subsection, the term 

‘pictorial, graphic, and 

sculptural works’ has the 

meaning given that term in 

section 101 of title 17, 

United States Code.” 

“(h) EFFECTIVE DATE.— 

(1) IN GENERAL.—The 

amendments made by this 

section shall take effect on 

January 1, 20__.” 

28
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Effective Date (cont’d) FEDERAL REGISTER.—The 

Register of Copyrights 

shall publish 

the effective date 

described in subsection 

(b)(1) in the Federal 

Register, together with a 

notice that the 

amendments made by 

section 2 take effect on 

that date with respect to 

pictorial, graphic, and 

sculptural works. 

(d) DEFINITION.—In this 

section, the term ‘pictorial, 

graphic, and sculptural 

works’ has the meaning 

given that term in section 

101 of title 17, United 

States Code.” 

29
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Study on Copyright 

Deposits 

[none] [none] “SEC. 7. STUDY ON 

COPYRIGHT DEPOSITS. 

(a) IN GENERAL.—The 

Comptroller General of 

the United States shall 

conduct a study examining 

the function of the deposit 

requirement in the 

copyright registration 

system under section 408 

of title 17, United States 

Code, including— 

(1) the historical purpose 

of the deposit requirement; 

(2) the degree to which 

deposits are made 

available to the public 

currently; 

(3) the feasibility of 

making deposits, 

particularly visual arts 

deposits, electronically 

searchable by the public 

for the purpose of locating 

copyright owners; and 

(4) the impact any change 

in the deposit requirement 

would have on the 

collection of the Library 

of Congress. 

(b) REPORT.—Not later 

than 2 years after the date 

of the enactment of this 

Act, the Comptroller 

General shall submit to the 

Committee on the 

Judiciary of the House of 

Representatives and the 

“SEC. 6. STUDY ON 

COPYRIGHT DEPOSITS. 

(a) IN GENERAL.—The 

Comptroller General of 

the United States shall 

conduct a study examining 

the function of the deposit 

requirement in the 

copyright registration 

system under section 408 

of title 17, United States 

Code, including— 

(1) the historical purpose 

of the deposit requirement; 

(2) the degree to which 

deposits are made 

available to the public 

currently; 

(3) the feasibility of 

making deposits, 

particularly visual arts 

deposits, electronically 

searchable by the public 

for the purpose of locating 

copyright owners; and 

(4) the impact any change 

in the deposit requirement 

would have on the 

collection of the Library 

of Congress. 

(b) REPORT.—Not later 

than 2 years after the date 

of the enactment of this 

Act, the Comptroller 

General shall submit to the 

Committee on the 

Judiciary of the Senate 

and the Committee on the 

[none] 

30
 
 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Study on Copyright 

Deposits (cont’d)

Committee on the 

Judiciary of the Senate a 

report on the study 

conducted under this 

section, including such 

administrative, regulatory, 

or legislative 

recommendations that the 

Register considers 

appropriate.” 

Judiciary of the House of 

Representatives a report 

on the study conducted 

under this section, 

including such 

administrative, regulatory, 

or legislative 

recommendations that the 

Comptroller General 

considers appropriate.” 

31
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Comparison Chart
 

2006 USCO Report 2006 Text 

(H.R. 5439) 

2008 Text 

(H.R. 5889) 

2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Report to Congress on 

Amendments 

[none] “SEC. 3. REPORT TO 

CONGRESS ON 

AMENDMENTS. 

The Register of 

Copyrights shall, not later 

than December 12, 2014, 

report to the Committee 

on the Judiciary of the 

House of Representatives 

and the Committee on the 

Judiciary of the Senate on 

the implementation and 

effects of the amendments 

made by section 2, 

including any 

recommendations for 

legislative changes that the 

Register considers 

appropriate.” 

“SEC. 5. REPORT TO 

CONGRESS. 

Not later than December 

12, 2014, the Register of 

Copyrights shall report to 

the Committee on the 

Judiciary of the Senate 

and the Committee on the 

Judiciary of the House of 

Representatives on the 

implementation and 

effects of the amendments 

made by section 2, 

including any 

recommendations for 

legislative changes that the 

Register considers 

appropriate.” 

“SEC. 4. REPORT TO 

CONGRESS. 

Not later than December 

12, 2014, the Register of 

Copyrights shall report to 

the Committee on the 

Judiciary of the Senate 

and the Committee on the 

Judiciary of the House of 

Representatives on the 

implementation and 

effects of the amendments 

made by section 2, 

including any 

recommendations for 

legislative changes that the 

Register considers 

appropriate.” 

“SEC. 3. REPORT TO 

CONGRESS. 

Not later than December 

12, 20__, the Register of 

Copyrights shall report to 

the Committee on the 

Judiciary of the Senate 

and the Committee on the 

Judiciary of the House of 

Representatives on the 

implementation and 

effects of the amendments 

made by section 2, 

including any 

recommendations for 

legislative changes that the 

Register considers 

appropriate.” 

32
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Key Differences Chart
 

Key Differences 2006 USCO Report 2006 Text (H.R. 5439) 2008 Text (H.R. 5889) 2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Limitation on Remedies Limitation on remedies 

only when infringer (i) 

prior to use, performs 

“good faith, reasonably 

diligent” search for owner, 

but cannot locate, and (ii) 

provides attribution to 

author and to owner as 

appropriate under the 

circumstances. 

Infringer has burden of 

proving performance and 

documentation of search, 

and of proving reasonable 

attribution. 

Expands infringer 

responsibility to “a person 

acting on behalf of the 

infringer, or any person 

jointly and severally liable 

with the infringer for the 

infringement of the work.” 

Attribution required only if 

known with “reasonable 

degree of certainty” based 

on reasonably diligent 

search. 

Preponderance of the 

evidence standard for 

“qualifying searches.” 

Requirement that infringer 

file Notice of Use prior to 

infringement. 

Inclusion of symbol or other 

notice of use of infringing 

work. 

In initial pleading to civil 

action, assertion that 

infringer has right to claim 

limitations. 

Consent to U.S. District 

Court jurisdiction. 

Inclusion of description and 

documentation of search as 

part of initial discovery 

disclosures under Rule 26. 

No limitations on remedies 

if infringer does not, after 

receiving notice of claim for 

infringement, (i) negotiate 

for reasonable compensation 

with owner, or (ii) render 

reasonable compensation in 

timely manner. 

Same as H.R. 5889, 

except (i) good faith 

qualifying search must be 

in order to locate and 

identify owner; (ii) no 

Notice of Use 

requirement, and (iii) no 

requirement to consent to 

U.S. District Court 

jurisdiction. 

Adopts S. 2913 approach, 

plus addition of Notice of 

Use requirement. 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Key Differences Chart
 

Key Differences 2006 USCO Report 2006 Text (H.R. 5439) 2008 Text (H.R. 5889) 2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Requirements for 

Searches & Information 

to Guide Searches 

No recommended statutory 

language. 

Factors that may need to be 

taken into account in 

determining if a search is 

reasonable: (i) Amount of 

identifying information on 

copy of work. 

(ii) Availability of work to 

public. 

(iii) Age of work, or when 

published. 

(iv) Availability of 

information in publicly 

available records. 

(v) Whether author alive, 

corporate owner exists, or 

record of transfer available. 

(vi) Nature and extent of 

infringing use. 

“Reasonably diligent 

search” means taking steps 

reasonable under the 

circumstances, and 

ordinarily includes review 

of Copyright Office 

records, use of expert 

assistance, and use of 

technology (including feebased technology if 

reasonable under the 

circumstances). 

Reference solely to lack of 

identifying information on 

copy of work is not 

“reasonably diligent.” 

Responsibility of Register 

to maintain and make 

available to public 

information to guide 

searches, such as: 

(i) relevant Copyright 

Office records (ii) other 

sources of copyright 

ownership information, 

(iii) methods of identifying 

copyright ownership 

information, (iv) sources of 

technology tools and expert 

assistance, and (v) best 

practices for documenting 

search. 

A search qualifies if court 

finds it is “diligent” when it 

considers: 

(i) Whether actions are 

reasonable and appropriate 

under facts relevant to 

search, including facts 

uncovered during search 

itself. 

(ii) Whether infringer 

employed Register’s best 

practices. 

(iii) Whether search 

performed before and at a 

time reasonably proximate 

to infringement. 

Reference solely to lack of 

identifying information on 

copy of work is not “diligent 

effort.” 

“Statements of Best 

Practices” required of 

Register. In formulating, 

Register shall consider 

“materials and standards” 

relevant to the requirements 

for a qualifying diligent 

search. 

Requires specific 

minimum actions for a 

diligent effort: (i) search 

of relevant online 

Copyright Office records, 

provided sufficient 

identifying information 

available; (ii) search of 

sources of copyright 

ownership, authorship, 

and licensor information; 

(iii) use of appropriate 

technology tools, print 

resources, and expert 

assistance; (iv) use of 

appropriate databases; (v) 

adjustment of search 

strategy based upon facts 

uncovered during search; 

(vi) use of onsite 

Copyright Office records 

if likely to be useful. 

Qualifying search 

“ordinarily based” on 

Copyright Office 

Statement of 

Recommended Practices 

for relevant category of 

works, and upon any 

additional 3rd -party best 

practices. 

Copyright Office must 

maintain, make available, 

and update at least one 

statement of 

Recommended Practices 

for each category of 

works 

Adopts S. 2913 approach 

with following exceptions: 

(i) Qualifying search need 

not be based upon 3rd -party 

best practices. 

(ii) Courts may consider 

reliance on foreign 

qualifying searches, if 

reciprocal. 

(iii) Office may, but is not 

required to, consider Small 

Business Admin. and other 

stakeholder comments in 

formulating Recommended 

Practices. 

(iv) The Office is not 

required to consider impact 

of Recommended Practices 

upon small businesses. 

Reference solely to lack of 

identifying information on 

copy of work or lack of 

response from the owner of 

the copyright is not 

“reasonably diligent.” 

Qualifying searches may 

include the use of resources 

for charge. 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Key Differences Chart
 

Key Differences 2006 USCO Report 2006 Text (H.R. 5439) 2008 Text (H.R. 5889) 2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Requirements for 

Searches & Information 

to Guide Searches 

(cont’d)

under section 102(a), for 

conducting and 

documenting a search. 

Office must consider 

relevant resources and 

materials, including 

comments from Small 

Business Admin. Office 

of Advocacy, and must 

consider impact on small 

business copyright 

owners. 

Reference solely to lack 

of identifying information 

on copy of work or lack 

of response from the 

owner of the copyright is 

not “reasonably diligent.” 

Qualifying searches may 

include the use of 

resources for charge. 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Key Differences Chart
 

Key Differences 2006 USCO Report 2006 Text (H.R. 5439) 2008 Text (H.R. 5889) 2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Notice of Use Archive No recommended statutory 

language. 

No such provision. Addition of requirement for 

Register to create Notice of 

Use archive, with 

instructions as to what 

details to include. Public 

access to the archive to be 

determined by Copyright 

Office regulations. 

Removes archive 

provision. 

Re-inserts archive 

provision, adding 

requirement to include 

information on source of 

infringer’s copy of work. 

4
 
 

 

 

 

 

Orphan Works Legislative Language: Key Differences Chart
 

Key Differences 2006 USCO Report 2006 Text (H.R. 5439) 2008 Text (H.R. 5889) 2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Penalty for Failure to 

Comply with Search 

Requirements 

No recommended statutory 

language. 

No such provision. Addition of provision stating 

that no limitation of liability 

will be available if search 

requirements not met. 

Same as H.R. 5889, with 

slightly different wording. 

Same as S. 2913. 

5
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Key Differences Chart
 

Key Differences 2006 USCO Report 2006 Text (H.R. 5439) 2008 Text (H.R. 5889) 2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Limitations: Monetary 

Relief 

Only monetary relief 

available is payment of 

reasonable compensation. 

Exception: No monetary 

relief of any kind available 

if (a) infringement 

performed without purpose 

of direct or indirect 

commercial advantage, and 

(b) infringement ceases 

expeditiously after notice 

of claim for infringement. 

Conditions under which 

court may not order 

payment of reasonable 

compensation changed to 

require that infringement 

performed for charitable, 

religious, scholarly, or 

educational purpose. 

Even if conditions for nonpayment of reasonable 

compensation are met, 

reasonable compensation 

still can be ordered if 

infringer earned proceeds 

directly attributable to the 

infringement. 

Court may order payment 

of full costs, including 

reasonable attorney’s fee, 

if infringer doesn’t 

negotiate in good faith 

regarding amount of 

reasonable compensation. 

Reasonable compensation to 

be made to the “legal or 

beneficial owner” of 

exclusive right in the 

infringed work. 

New structure of exception: 

no payment of reasonable 

compensation if infringer is 

a nonprofit educational 

institution, library, or 

archives, or a public 

broadcasting entity, and 

proves by preponderance of 

evidence: (a) no purpose of 

direct or indirect 

commercial advantage, (b) 

infringement primarily 

educational, religious, or 

charitable, and (c) after 

receiving notice of claim for 

infringement and 

expeditious investigation of 

this claim, infringer 

promptly ceases 

infringement. If infringer 

earned direct profits from 

infringement, portion 

attributable to infringement 

must be paid to legal or 

beneficial owner. 

No good faith negotiation 

provision. 

Court may take registration 

of work into consideration 

when determining 

reasonable compensation. 

Reasonable compensation 

only due to owner of 

exclusive right. 

Adds employees of 

entities enumerated in 

H.R. 5889 acting within 

scope of employment to 

exception 

Exception structure same 

as H.R. 5889, except to 

remove provision 

concerning payment of 

direct profits. 

No ability for court to 

take registration into 

account in determining 

reasonable compensation. 

Identical to S. 2913, with 

addition of ability of court 

to take registration into 

account when determining 

reasonable compensation. 

6
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Key Differences Chart
 

Key Differences 2006 USCO Report 2006 Text (H.R. 5439) 2008 Text (H.R. 5889) 2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Limitations: Injunctive 

Relief 

General rule: court may 

impose injunctive or 

equitable relief, but in 

doing so must account for 

any harm such relief would 

cause the infringer due to 

the infringer relying upon 

this remedy limitation. 

Exception: When infringer 

creates or is in the process 

of creating a derivative 

work that uses a 

“significant amount” of the 

infringer’s expression, 

court may not restrain this 

creation, provided that (a) 

reasonable compensation is 

paid and (b) attribution to 

author and copyright owner 

made as appropriate. 

General rule: if infringer 

has performed reasonably 

diligent search, injunctive 

or equitable relief must 

account for infringer’s 

reliance upon results of 

that search. 

Exception: same as 2006 

Report, but no requirement 

for use of “significant 

amount” of the infringer’s 

expression, and attribution 

due only to owner of work. 

Limitations: An infringer 

who asserts that it is immune 

from suit in Federal court 

for damages cannot avail 

itself of these limitations 

on injunctive relief unless 

(a) it performed a 

reasonably diligent search, 

(b) made a good faith offer 

of compensation that was 

rejected by the copyright 

owner, and (c) affirmed 

that it was willing to pay 

such compensation upon 

determination by the court 

that such compensation 

was reasonable. 

Construction of limitations: 

does not require or constitute 

an award of damages, and 

complying with its 

conditions does not 

constitute a waiver of the 

infringer’s immunity from 

suit for damages. 

General rule: omits 

provision that court must 

account for infringer’s 

reliance on remedy 

limitation. 

Exception: reinstates 

requirement for use of 

“significant amount” of 

infringer’s expression. 

Limitations: Slightly 

different conditions – (a) 

compliance with 

qualifications for 

limitations, and (b) 

enforceable promise to make 

reasonable compensation to 

legal or beneficial owner of 

infringed work. 

Construction of limitations: 

adds provision that 

limitations are not an 

authorization to sue a State. 

General rule: Same as 

H.R. 5439. Reinstates 

provision that court must 

account for infringer’s 

reasonable reliance on 

remedy limitation. 

Exception: Similar to 

H.R. 5889; requires 

payment of reasonable 

compensation in a 

reasonably timely manner 

after such compensation 

has been agreed upon 

with owner of work or 

determined by court. 

Limitations: Slightly 

different conditions – (a) 

compliance with 

qualifications for 

limitations, and (b) actual 

payment of reasonable 

compensation to owner of 

infringed work. 

Construction of 

limitations: Essentially 

same as H.R. 5889. 

All provisions same as S. 

2913, except for addition 

of new exception allowing 

an owner-author to seek 

injunctive relief against the 

use of an orphan work as 

part of a derivative work, 

provided that the infringer 

uses the orphan work in a 

way that is harmful to the 

owner-author’s honor or 

reputation, and is not 

otherwise compensable. 

7
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Orphan Works Legislative Language: Key Differences Chart
 

Key Differences 2006 USCO Report 2006 Text (H.R. 5439) 2008 Text (H.R. 5889) 2008 Shawn Bentley Act 

(S. 2913) 

2015 USCO Discussion 

Draft 

Reasonable 

Compensation 

No recommended statutory 

language. 

Report text notes that 

concept based upon what 

reasonable willing buyer 

and reasonable willing 

seller would have agreed to 

at time of use, as supported 

by evidence of what 

licenses for similar uses 

have cost. 

Owner of infringed work 

has burden of establishing 

amount to which 

reasonable willing seller 

and reasonable willing 

buyer, in the positions of 

owner and infringer, would 

have agreed immediately 

prior to infringement. 

Same meaning as H.R. 

5439, without placing 

burden on either party. 

Same as H.R. 5889. Same as H.R. 5889. 

8
 
orphan works and mass digitization

u.s. copyright office

appendix e comparative summary of 

select orphan works provisions 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comparative Summary of Select Orphan Works (Individual or Case-by-Case Use) Provisions
 

Country or Type Eligible Users Eligible Works Permitted Uses Search Standard Registry, Database, Rights of 

Jurisdiction or Archive for 

Recording Orphan 

Works 

Re-Emerging 

Rightsholders 

Canada Non-exclusive 

license centrally 

granted by 

Copyright Board of 

Canada. 

1 

Any user who 

demonstrates that he 

or she has made 

reasonable efforts to 

locate copyright 

owner and that 

owner cannot be 

located.2 

Published works, 

fixations of 

performances, 

published sound 

recordings, fixations 

of communication 

signals in which 

copyright subsists.3 

Any uses specified 

in sections 3, 15, 18, 

and 21 of the 

Canadian Copyright 

Act.4 

Applicant must 

satisfy Copyright 

Board that he or she 

made “reasonable 

efforts” to locate the 

owner. 5 

Copyright Board 

maintains a database 

of the licenses 

issued.6 

No later than five 

years after the 

expiration of a 

license, 

rightsholders may 

collect royalties 

fixed in the license, 

or, in default of their 

payment, commence 

an action to recover 

them in a court of 

competent 

jurisdiction.7 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comparative Summary of Select Orphan Works (Individual or Case-by-Case Use) Provisions
 

Country or Type Eligible Users Eligible Works Permitted Uses Search Standard Registry, Database, Rights of 

Jurisdiction or Archive for 

Recording Orphan 

Works 

Re-Emerging 

Rightsholders 

European Union Limited exception 

to copyright.8 

Publicly accessible 

libraries, 

educational 

establishments and 

museums, archives, 

film or audio 

heritage institutions, 

and public service 

broadcasting 

organizations 

established in EU 

Member States. 

9 

Published written 

works, 

cinematographic or 

audiovisual works, 

and phonograms 

held in beneficiary 

institutions; 

specified works that 

have never been 

published or 

broadcast but have 

been made publicly 

accessible by such 

institutions. 

Includes works that 

are embedded or 

incorporated in, or 

constitute an 

integral part of, 

covered works.10 

(1) Making the work 

available to the 

public, (2) 

reproduction for 

purposes of 

digitization, making 

available, indexing, 

cataloging, 

preservation, or 

restoration. Use 

must be to achieve 

aims related to the 

organization’s 

public interest 

mission.11 

“Diligent search” 

that is carried out in 

good faith by 

consulting the 

appropriate sources 

for the category of 

works and protected 

subject matter.12 

At minimum, user 

must consult 

sources listed in the 

Directive’s annex.13 

The Office for 

Harmonization in 

the Internal Market 

(OHIM) maintains a 

single publicly 

accessible online 

database.14 

Rightsholder is 

entitled to fair 

compensation – 

taking into account 

the promotion of 

cultural objectives, 

non-commercial 

nature of use, and 

possible harm to 

rightsholders – and 

may put an end to 

the work’s orphan 

status.15 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comparative Summary of Select Orphan Works (Individual or Case-by-Case Use) Provisions
 

Country or Type Eligible Users Eligible Works Permitted Uses Search Standard Registry, Database, Rights of 

Jurisdiction or Archive for 

Recording Orphan 

Works 

Re-Emerging 

Rightsholders 

Hungary Centrally-granted, 

non-exclusive, nonAny user who conducts search for 

Any work that is 

copyrightable and 

Any commercial or 

noncommercial uses 

Applicant must 

submit evidence that 

HIPO maintains a 

database of licenses 

• Rightsholders are 

entitled to adequate 

(The Hungarian transferable license a rightsholder and not covered under for which collective he or she conducted issued.22 remuneration, which 

provisions are valid for not more submits evidence of collective rights rights management a search for the is calculated by 

intended to than five years. search and management.18 If does not exist.20 rightsholder’s HIPO based on 

operate in tandem information about the work was identity and place of extent, mode of use, 

with the License does not planned use to the subject to an ECL, residence, and that and other 

transposed EU permit sub-licensing Hungarian but the rightsholder the search produced circumstances of 

Directive and the and/or revision of Intellectual Property opted out and later no results.21 use. 23 

Hungarian the work.16 Office (HIPO).17 became unknown or • Funds deposited 

collective rights moved to an with the Office are 

management unknown location, transferred to 

provisions. The HIPO may issue a collecting societies or 

provisions license.19 the National Cultural 

described here Fund after five years, 

concern uses and and are no longer 

users other than available to 

those addressed in rightsholders.24 

the EU Directive. • Rightsholder may 

For uses and users withdraw permission addressed in the to use work, but 

EU Directive, where serious 

procedures preparations have 

different than been made to use the 

those applied here work based on a 

occasionally license, continued use 

apply.) may be permitted for 

up to remaining 

period of license, 

extending at most to 

one year. 

25 

• Rightsholders may 

dispute the amount of 

remuneration through 

the judicial process.26 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comparative Summary of Select Orphan Works (Individual or Case-by-Case Use) Provisions
 

Country or Type Eligible Users Eligible Works Permitted Uses Search Standard Registry, Database, Rights of 

Jurisdiction or Archive for 

Recording Orphan 

Works 

Re-Emerging 

Rightsholders 

India Centrally-granted 

license valid for a 

term specified in the 

license.27 

Any person may 

apply for a license.28 

Any unpublished 

work or any work 

published or 

communicated to 

the public where the 

work is withheld 

from the public in 

India, the author is 

dead, unknown, or 

cannot be traced, or 

the copyright owner 

cannot be found.29 

Publish or 

communicate to the 

public the work or a 

translation thereof.30 

Applicant must 

publish proposal for 

use of work in one 

issue of a daily 

English-language 

newspaper having 

circulation in the 

major part of India. 

Where application is 

for the publication 

of a translation, 

applicant must also 

publish proposal in 

one issue of a daily 

newspaper in that 

language. Applicant 

must submit 

newspapers with 

license 

application.31 

Grants of licenses 

are published in 

Official Gazette and 

on the website of 

the Copyright 

Office and 

Copyright Board, 

and copies of the 

licenses are sent to 

all concerned 

parties.32 

Copyright Board 

determines amount 

of royalty to be 

deposited by 

applicant. Board 

may consider 

prevailing standards 

for royalties with 

regard to such 

works and other 

matters considered 

relevant. 

Rightsholder may 

claim royalty at any 

time.33 

4
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comparative Summary of Select Orphan Works (Individual or Case-by-Case Use) Provisions
 

Country or Type Eligible Users Eligible Works Permitted Uses Search Standard Registry, Database, Rights of 

Jurisdiction or Archive for 

Recording Orphan 

Works 

Re-Emerging 

Rightsholders 

Japan License centrally 

granted by 

Commissioner of 

the Agency for 

Cultural Affairs 

(ACA).34 

Any user who 

conducts search for 

a rightsholder and 

submits evidence of 

search and 

information about 

planned use to the 

ACA.35 

Works that have 

been made public or 

for which “it is clear 

that it has been 

offered to or made 

available to the 

public for a 

considerable period 

of time.”36 

Any uses 

approved/specified 

by license.37 

An Enforcement 

Order lays out 

specific requirements 

for “due diligence” in 

searches, including: 

• Review 

publications and 

other materials that 

the ACA specifies 

and that publicize 

information relating 

to copyright 

ownership. 

• Inquire with 

copyright 

management 

organizations and 

other organizations 

that the ACA 

specifies and that 

hold copyright 

ownership 

information. 

• Seek information 

from the public by 

advertising in a daily 

newspaper or by 

equivalent methods 

that the ACA 

specifies. 

• Attempt to contact 

rightsholder using 

information obtained 

through these and 

other measures.38 

After issuing a 

license, the ACA 

gives public notice 

that the license has 

been issued in the 

Official Gazette.39 

Compensation is 

calculated by the 

ACA, in 

cooperation with the 

Culture Council, 

based on the 

ordinary rate of 

royalty. 

Rightsholder can 

object to a license 

fee within six 

months after 

learning that a 

license has been 

issued.40 

5
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comparative Summary of Select Orphan Works (Individual or Case-by-Case Use) Provisions
 

Country or Type Eligible Users Eligible Works Permitted Uses Search Standard Registry, Database, Rights of 

Jurisdiction or Archive for 

Recording Orphan 

Works 

Re-Emerging 

Rightsholders 

Korea License centrally 

granted by the 

Minister of Culture, 

Sports and 

Tourism.41 

Any user who 

makes considerable 

efforts to search for 

a rightsholder, 

deposits 

compensation 

money, and obtains 

approval from the 

Minister of Culture, 

Sports and 

Tourism. 

42 

Works (excluding 

foreigners’ works) 

made open to the 

public by means of 

public performance, 

broadcasting, or 

exhibition and by 

other means, or 

published.43 

Any uses 

approved/specified 

by license.44 

Search for 

rightsholders must 

fail despite 

“considerable 

efforts,” and meet 

the following 

requirements: 

 ̈ Perusal of 

copyright register 

and inquiry with 

copyright trust 

management 

business yield no 

results. 

 ̈ Passage of ten 

days after Ministry 

of Culture, Sports 

and Tourism 

announces matter in 

general daily 

newspaper or on 

Ministry website 

and information 

searching system. 

If application fee for 

a work has not been 

distributed after 

three years, or if 

Ministry has failed 

to identify or locate 

the rightsholder, 

search requirements 

are deemed 

satisfied. 

45 

Ministry of Culture, 

Sports and Tourism 

maintains a database 

of licenses issued.46 

Rightsholders are 

entitled to adequate 

remuneration in the 

form of the 

licensing fee – 

calculated by the 

Minister of Culture, 

Sports and Tourism 

– and can object to 

any application to 

use their work by 

submitting an 

objection to the 

Minister of Culture, 

Sports and 

Tourism.47 

6
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comparative Summary of Select Orphan Works (Individual or Case-by-Case Use) Provisions
 

Country or Type Eligible Users Eligible Works Permitted Uses Search Standard Registry, Database, Rights of 

Jurisdiction or Archive for 

Recording Orphan 

Works 

Re-Emerging 

Rightsholders 

Taiwan License centrally 

granted by Taiwan 

Intellectual Property 

Office (TIPO).48 

Any user who uses 

its best effort but 

fails to obtain a 

valid authorization 

from the copyright 

owner due to either 

the identity or the 

location being 

unknown.49 

Statute and 

regulations do not 

restrict the types of 

works eligible for 

licensing. 

Applicant specifies 

the “cultural or 

creative product to 

be produced through 

exploitation of the 

work.”50 TIPO 

grants authorization 

to use the work 

within a certain 

permitted scope.51 

Prospective user 

must use “best 

effort” to identify or 

locate copyright 

owner, and clarify 

reason for failure in 

application to 

TIPO,52 including: 

 ̈ Statement that 

applicant inquired 

with the related 

copyright 

organizations 

regarding the 

rightsholder’s 

identity or location, 

and received no 

response within 30 

days, or 

organization 

responded that 

information cannot 

be ascertained. 

 ̈ Statement that 

applicant advertised 

in a newspaper or 

otherwise searched 

publicly, and 

received no 

response within 30 

days.53 

TIPO publishes 

authorization to use 

the work in a 

government 

report.54 

User deposits 

royalties approved 

by TIPO. Amount 

shall be 

commensurate with 

freely negotiated 

amount of 

reasonable 

remuneration.55 

7
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comparative Summary of Select Orphan Works (Individual or Case-by-Case Use) Provisions
 

Country or Type Eligible Users Eligible Works Permitted Uses Search Standard Registry, Database, Rights of 

Jurisdiction or Archive for 

Recording Orphan 

Works 

Re-Emerging 

Rightsholders 

United Kingdom 

(The U.K. 

provision is 

intended to 

operate in tandem 

with the 

transposed EU 

Directive and the 

U.K. ECL 

provisions.) 

Centrally-granted 

non-exclusive 

license valid for not 

longer than seven 

years. 56 

License does not 

permit sub-licensing 

and may not affect 

author’s or 

performer’s moral 

rights.57 

Any user who 

conducts search for 

a rightsholder and 

submits evidence of 

diligent search, 

planned use, an 

affidavit, and a 

reasonable 

processing fee to the 

authorizing body 

(the ComptrollerGeneral of Patents, 

Designs and Trade 

Marks).58 

Any copyrightprotected work or 

performance.59 

Any uses in the 

United Kingdom 

approved/specified 

by license and 

covered by 

copyright or 

performers’ 

exclusive rights. 

60 

Users must carry out 

a “diligent search” 

or refer to an 

existing diligent 

search relevant to 

the planned use and 

work in question.61 

Minimum 

requirements 

include a search of 

the OHIM registry 

and relevant sources 

listed for each 

particular category 

in schedule ZA1 of 

the U.K. regulations 

implementing the 

EU Directive. 

62 

The Comptroller 

may issue guidance 

on what additional 

sources may be 

relevant to a diligent 

search for certain 

works. 

63 

The Comptroller 

maintains a database 

of licenses issued.64 

Rightsholder is 

entitled to deposited 

license fee – 

calculated by taking 

into account the 

licensing market for 

similar works that 

are not orphaned – 

within eight years of 

date of first use. A 

reasonable amount 

can be awarded after 

eight years, 

depending on the 

circumstances.65 

User may continue 

use for unexpired 

term of license or 

until expiration of 

notice period in 

license.66 

8
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comparative Summary of Select Orphan Works (Individual or Case-by-Case Use) Provisions
 

Country or Type Eligible Users Eligible Works Permitted Uses Search Standard Registry, Database, Rights of 

Jurisdiction or Archive for 

Recording Orphan 

Works 

Re-Emerging 

Rightsholders 

United States Limitation on 

judicial remedies.67 

Any user who seeks 

permission to use a 

All (published and 

unpublished) 

Any (commercial or 

noncommercial) 

Users must employ 

“diligent effort that 

Copyright Office 

must create and 

Monetary relief: 

 ̈ Reasonable 

2015 Proposed copyright-protected copyright-protected use. 70 is reasonable under maintain a Notice of compensation 

Legislation work and cannot 

locate and identify 

the owner after 

conducting a 

reasonably diligent 

search.68 

works.69 the circumstances” 

to locate copyright 

owner before and at 

a time reasonably 

proximate to the 

infringement. 

Diligent effort 

requires, at a 

minimum, search of 

Copyright Office 

online records; 

search of reasonably 

available sources of 

authorship and 

ownership 

information, and 

licensor information 

where appropriate; 

use of technology 

tools and, where 

reasonable, expert 

assistance; and use 

of appropriate 

databases. Shall 

also include actions 

that are reasonable 

and appropriate 

under the facts 

relevant to the 

search.71 

Use archive; filings 

made available 

under Copyright 

Office regulations. 

Notice of Use filing 

must include: type 

of work, description 

of work, summary 

of qualifying search, 

any available 

identifying elements 

of work, source of 

work (if website, 

include URL and 

date), certification 

of good faith 

qualifying search, 

name of infringer, 

and description of 

use. 72 

(amount willing buyer 

and willing seller 

would have agreed 

upon before 

infringement began). 

 ̈ Not available where 

user is nonprofit 

public interest 

institution making 

non-commercial 

educational, 

charitable, or religious 

use, and user ceases 

use promptly after 

receiving Notice of 

Claim of 

Infringement. 

Injunctive relief: 

 ̈ Must account for 

harm injunction 

would cause infringer 

due to reliance on 

limitation of liability. 

 ̈ If user prepared or 

began to prepare 

derivative work with 

significant original 

expression, court may 

not enjoin, provided 

user compensates 

owner and provides 

attribution if requested 

(does not apply where 

author seeks 

injunction to remedy 

reputational harm). 

73 

9
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Notes: 

 Chart reflects high-level summaries of applicable laws. For detailed information, please refer to statutory text.
 

 Citations are based on currently available public information.
 

 For non-English sources, citations are to the most recent version for which an English translation is publicly available, including unofficial translations.
 

1 Copyright Act, R.S.C. 1985, c. C-42, s. 77(1)-(2) (Can.). 

2 Id. s. 77(1). 

3 Id. 

4 Id. 

5 Id. 

6 See Decisions – Unlocatable Copyright Owners, COPYRIGHT BOARD OF CANADA, http://www.cb-cda.gc.ca/unlocatable-introuvables/licences-e.html.
 

7 Copyright Act, R.S.C. 1985, c. C-42, s. 77(3).
 

8 Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on Certain Permitted Uses of Orphan Works, art. 6(1), 2012 O.J. (L 299)
 

5, 9-10. 

9 Id. art. 1(1). 

10 Id. art. 1(2)-(4). 

11 Id. art. 6(1)-(2). 

12 Id. art. 3. 

13 Id. art. 3(2). 

14 Id. art. 3(6). 

15 Id. recital 18, art. 6(5). 

16 1999. évi LXXVI. törvény a szerzői jogról (Act LXXVI of 1999 on Copyright), § 41/B(1) (Hung.) (effective Oct. 29, 2014) (translation unavailable). 

10
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

17 138/2014. (IV.30.) Korm. r. az árva mű felhasználásának részletes szabályairól (Governmental Decree No. 138/2014 (IV. 30.) on Detailed Regulations on the Use 

of Orphan Works), §3(1)-(2) (Hung.) (translation unavailable). 

18 1999. évi LXXVI. törvény, § 41/A(9).
 

19 See Dénes István Legeza, „Segítsük az árvákat”: útmutató az árva művek egyes felhasználásaihoz [“Let’s Help the Orphans”: Guidelines for Certain Uses of 

Orphan Works], 7(5) IPARJOGVÉDELMI ÉS SZERZŐI JOGI SZEMLE [REV. INDUS. RTS. PROT. & COPYRIGHT L.] 23, 48 (2012) (Hung.).
 

20 1999. évi LXXVI törvény, §§41/A(9), 41/B(2); 138/2014 (IV. 30) Korm r., § 3(1).
 

21 1999. évi LXXVI törvény, § 41/B(1); 138/2014 (IV. 30) Korm r., §3(1)-(2).
 

22 138/2014 (IV. 30) Korm. r., § 8(1).
 

23 1999. évi LXXVI törvény, §41/B(1)-(2); 138/2014 (IV. 30) Korm r., § 3(1).
 

24 1999. évi LXXVI törvény, §41/B(5).
 

25 Id. §41/B(3)-(4).
 

26 Id. § 41/B(6). 

27 The Copyright Act, No. 14 of 1957, § 31A(1), as amended by the Copyright (Amendment) Act, 2012, § 17, INDIA CODE, available at http://indiacode.nic.in/; 

Copyright Rules, 2013, § 11(4)-(5), Gazette of India, part II, section 3(i) (Mar. 14 2013), available at http://copyright.gov.in/Documents/Copy-Right-Rules2013.pdf. 

28 The Copyright Act, No. 14 of 1957, § 31A(1), as amended by the Copyright (Amendment) Act, 2012, § 17. 

29 Id. 

30 Id.; Copyright Rules, 2013, § 11(1).
 

31 The Copyright Act, No. 14 of 1957, § 31A(2); Copyright Rules, 2013, § 11(3).
 

32 Copyright Rules, 2013, § 11(6).
 

33 The Copyright Act, No. 14 of 1957, § 31A(5); Copyright Rules, 2013, § 12.
 

34 Copyright Act, Law No. 48 of 1970, as amended up to Law No. 35 of 2014, art. 67, para. 1 (Japan), translated at
 

http://www.cric.or.jp/english/clj/doc/20150227_October,2014_Copyright_Law_of_Japan.pdf (unofficial translation). 

11
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

35 Id. art. 67, paras. 1-2.
 

36 Id. art. 67, para. 1. 

37 Id. art. 67, paras. 1-2. 

38 Enforcement Order of the Copyright Act, Cabinet Order No. 335 of 1970, as amended up to Cabinet Order No. 39 of 2014, art. 7-7 (Japan) (translation
 

unavailable).
 

39 Copyright Law, Law No. 48 of 1970, art. 70, para. 6.
 

40 Id. art. 67, para 1; art. 71; art. 72, para. 1.
 

41 Copyright Act of 1957, Act No. 432, Jan. 28, 1957, as amended up to Act No. 12137, Dec. 30, 2013, art. 50 (S. Kor.), translated at 

http://elaw.klri.re.kr/eng_service/lawView.do?hseq=32626&lang=ENG (unofficial translation). 

42 Id. 

43 Id. arts. 2(25), 50(1). 

44 Id. art. 50; Enforcement Decree of the Copyright Act, Presidential Decree No. 1482, Apr. 22, 1959, as amended by Presidential Decree No. 23721, Apr. 12, 2012, 

art. 21 (S. Kor.), translated at http://elaw.klri.re.kr/eng_service/lawView.do?hseq=28794&lang=ENG (unofficial translation). 

45 Copyright Act of 1957, Act. No. 432, art. 50; Copyright Act Enforcement Decree art. 18. 

46 Copyright Act of 1957, Act No. 432, art. 50(4); Copyright Act Enforcement Decree art. 21(2). 

47 Copyright Act of 1957, Act. No. 432, art. 50(1), (3); Copyright Act Enforcement Decree art. 20(3). 

48 Copyright Act of the Republic of China (promulgated by Order No. 212 of the National Government, May 14, 1928, updated through Presidential Order No. HuaZong-(1)-Yi-Zih 10300009931), XIANXING FAGUI HUIBIAN, art. 2 (Taiwan), translated at www.tipo.gov.tw/dl.asp?filename=42129352671.docx; Act of the 

Organization of Intellectual Property Office, Ministry of Economic Affairs 2011 (promulgated by Executive Yuan, effective Jan. 26, 1999, updated through Dec. 28, 

2011), art. 2(4) (Taiwan), translated at http://www.tipo.gov.tw/public/Data/21126971671.pdf; Law for the Development of the Cultural and Creative Industries (Ref. 

No. Hua-Zong-Yi-Yi-Zi 09900022451, promulgated Feb. 3, 2010), art. 24 (Taiwan), translated at http://law.moc.gov.tw/law/inc/GetFile.ashx?FileId=1643. 

49 Law for the Development of the Cultural and Creative Industries art. 24. 

50 Regulations Governing Application for Approval of License of Works of Unknown Owner of Copyrights and Royalties for Use Thereof (Promulgated by the 

Ministry of Economic Affairs, Sep. 24, 2010, effective Sep. 24, 2010), art. 3(4) (Taiwan), translated at www.tipo.gov.tw/dl.asp?fileName=332914501682.doc 

(“Regulations Governing Works of Unknown Owner”). 

12
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

51 Law for the Development of the Cultural and Creative Industries art. 24. 

52 Id. 

53 Regulations Governing Works of Unknown Owner art. 3(6).
 

54 Law for the Development of the Cultural and Creative Industries art. 24.
 

55 Id.; Regulations Governing Works of Unknown Author art. 6.
 

56 Copyright and Rights in Performances (Licensing of Orphan Works) Regulations, 2014, S.I. 2014/2863, art. 6, ¶ 2(a)-(b) (U.K.).
 

57 Id. art. 6, ¶ 2(c), (e).
 

58 Id. art. 4, ¶¶ 6-7; art. 9.
 

59 Id. art. 3, ¶¶ 1-2.
 

60 Id. art. 6, ¶ 2(b).
 

61 Id. art. 4, ¶ 1.
 

62 Id. art. 4, ¶ 3(a); Copyright and Rights in Performances (Certain Permitted Uses of Orphan Works) Regulations, 2014, S.I. 2014/2861, Schedule ZA1, Part 2.
 

63 Copyright and Rights in Performances (Licensing of Orphan Works) Regulations, 2014, S.I. 2014/2863, art. 4, ¶ 4.
 

64 Id. arts. 2 (“authorising body,” “Comptroller”), 5.
 

65 Id. art. 10, ¶¶ 1-2; art. 12, ¶ 4(b); art. 13, ¶ 3.
 

66 Id. art. 12, ¶ 3.
 

67 [Discussion Draft] Orphan Works Act of 20__, sec. 2, § 514(b)-(c) (attached at Appendix A).
 

68 Id. § 514(b).
 

69 Id. § 514.
 

70 Id. 

71 Id. § 514(b)(2).
 

13
 
 

 

 

72 Id. § 514(b)(3). 

73 Id. § 514(c). 

14 
orphan works and mass digitization

u.s. copyright office

appendix f	 comparative summary of 

select extended collective 

licensing provisions 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comparative Summary of Select Extended Collective Licensing Provisions
 

Country Covered Activities Government Oversight Opt-Out Provisions Dispute Resolution 

Mechanism 

Use of Funds 

Czech Republic • Phonograms published for 

commercial purposes: performance of 

artistic performances or performance of 

phonograms as such; non-theatrical 

performance of musical works. 

• Radio or television broadcasting: 

broadcast of certain type of works (not 

specified). 

• Radio or television broadcasts: 

performance of broadcasts of certain 

type of works (not specified), artistic 

performances, phonograms, and 

audiovisual fixations. 

• Lending: original or reproduction of a 

work (except computer program) or a 

work or performance fixed as an audio 

or audiovisual fixation. 

• Libraries: making available (including 

reproduction of published works) of 

works to individuals for purposes of 

research and private study; excludes 

computer programs, phonograms, 

audiovisual fixations, published musical 

notations, and works not subject to 

license agreements. 

• Live non-theatrical performance of a 

work: may not be for direct or indirect 

economic or commercial benefit.1 

• Approval by Ministry of 

Culture.2 

• Ministry may revoke 

authorization. 

3 

• Opt-out allowed for all 

ECLs except performance 

of radio or television 

broadcasts of certain type 

of works, artistic 

performances, 

phonograms, and 

audiovisual fixations.4 

• Mediation: parties may 

choose one or more 

mediators appointed by 

Ministry of Culture.5 

• Mediator’s proposal 

deemed accepted unless 

party objects within thirty 

days.6 

• CMO must “invite for 

registration” known 

rightsholders for whom it 

has collected royalties.7 

• If rightsholder is 

represented by another 

CMO, collecting CMO 

must provide remuneration 

to the representing CMO 

for distribution.8 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comparative Summary of Select Extended Collective Licensing Provisions
 

Country Covered Activities Government Oversight Opt-Out Provisions Dispute Resolution 

Mechanism 

Use of Funds 

Denmark • Educational activities: reproduction of 

published works and recordings of 

works broadcast on radio and television. 

• Business enterprises: reproduction for 

internal use of descriptive articles in 

newspapers, magazines, and collections, 

brief excerpts of other published 

descriptive works, musical works, and 

illustrations reproduced in association 

with text. 

• Public libraries: digital reproduction 

of articles from newspapers, magazines, 

and composite works, brief excerpts 

from books and other published literary 

works, and illustrations and music 

reproduced in connection with text. 

• Use by visually- and hearinghandicapped persons: reproduction 

through sound or visual recording by 

government and other social or nonprofit institutions of works broadcast on 

radio or television. 

• Works of fine art: reproduction, if the 

work has been made public. 

• Radio and television: broadcast of 

published works by DR, TV 2/Danmark 

A/S and regional TV 2 companies. 

Repetition and making available of 

works in these companies’ productions 

broadcast before January 1, 2007. 

Simultaneous and unaltered 

retransmission via cable and radio 

systems of works broadcast wirelessly 

on radio or television. 

• General license: users and CMOs in 

specific fields may agree to exploitation 

of works through ECL.9 

• Approval by Minister for 

Culture.10 

• Opt-out allowed only for 

ECLs regarding 

reproduction of fine art, 

primary broadcasting, 

rebroadcasting of works in 

broadcasters’ productions, 

and general ECL 

provision.11 

• Mediation: for most 

covered uses, each party 

may demand mediation. 

Mediator is appointed by 

Minister for Culture.12 

• Arbitration: each party 

may bring a dispute before 

the Copyright License 

Tribunal if it concerns 

educational activities, 

business enterprises, 

public libraries, 

distribution of sound 

recordings to visuallyimpaired persons, works of 

fine art, primary 

broadcasting, or cable and 

radio retransmission. 

Tribunal may lay down 

terms of remuneration.13 

• Unrepresented authors 

may claim individual 

remuneration from CMO. 

Each party may bring 

disputes before Copyright 

License Tribunal.14 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comparative Summary of Select Extended Collective Licensing Provisions
 

Country Covered Activities Government Oversight Opt-Out Provisions Dispute Resolution 

Mechanism 

Use of Funds 

Finland • Photocopying: published works. 

• Use for internal communication: 

reproduction of writing published in a 

newspaper or periodical and 

illustrations accompanying the text. 

Copies may be used for communication 

to public. Excludes radio/television 

transmission and photocopying. 

• Educational activities and scientific 

research: reproduction and 

communication to the public of works 

made public. Excludes radio/television 

transmission and photocopying. 

• Use by archives, libraries, and 

museums: reproduction and 

communication to the public of works 

in a collection, with certain exceptions. 

• Art in collections or displayed or 

offered for sale: reproduction by 

maintainer of the collection and 

communication to public by means 

other than radio/television transmission. 

• Original radio/television transmissions: 

transmission of works by broadcasting 

organizations, excluding dramatic and 

cinematographic works. Reproduction 

of works for use in broadcasts more 

than four times per year. 

• New transmission of television 

programs stored in archives: 

transmission by broadcasting 

organizations of works included in 

television programs transmitted before 

January 1, 1985. 

• Retransmission of radio/television 

transmission: simultaneous 

retransmission without alteration of a 

work included in a radio or television 

transmission.15 

• Approval by Ministry of 

Education. 

• For fixed period, 

maximum five years.16 

• Opt-out allowed for all 

ECLs except 

photocopying, 

reproduction of works for 

use in broadcasts, and 

simultaneous and 

unaltered retransmission of 

broadcasts.17 

• Arbitration: available for 

disputes involving 

photocopying or other 

reproduction for use in 

educational activities or 

retransmission of 

broadcast works. 

• Where either party 

refuses arbitration, the 

other may submit matter to 

District Court of 

Helsinki.18 

• Unrepresented authors 

may claim individual 

remuneration from CMO. 

Claims must be submitted 

within three years of end 

of calendar year in which 

use took place.19 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comparative Summary of Select Extended Collective Licensing Provisions
 

Country Covered Activities Government Oversight Opt-Out Provisions Dispute Resolution 

Mechanism 

Use of Funds 

France • Out-of-commerce books: digital 

reproduction and dissemination of 

books published in France before 

January 1, 2001 that are not currently 

being commercially distributed or 

published in printed or digital form.20 

• Approval by Minister of 

Culture.21 

• Author and publisher 

may object to CMO 

management within six 

months of book’s listing in 

register; author can later 

object based on harm to 

honor or reputation; 

publisher who objects 

must exploit book within 

two years.22 

• Author may object to 

grant of exclusive license 

to original print publisher 

by proving that publisher 

lacks digital rights.23 

• Author may withdraw 

CMO’s right to issue nonexclusive licenses if he 

proves that he is the sole 

owner of digital rights.24 

• Author and publisher 

may jointly withdraw 

rights from CMO; 

publisher must exploit 

book within eighteen 

months.25 

• Not specified. • After specified period, 

CMOs may use royalties 

collected on behalf of 

rightsholders who have not 

been identified or located 

to support training 

programs for authors and 

the promotion of reading.26 

4
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comparative Summary of Select Extended Collective Licensing Provisions
 

Country Covered Activities Government Oversight Opt-Out Provisions Dispute Resolution 

Mechanism 

Use of Funds 

Germany • Out-of-print works: reproduction and 

making available of out-of-commerce 

works in books, scientific journals, 

newspapers, magazines, or other 

writings published before January 1, 

1966 and located in the collections of 

publicly accessible libraries, 

educational institutions, museums, 

archives, and film or audio heritage 

institutions. Commercial purposes not 

allowed.27 

• Approval by Patent 

Office in agreement with 

Federal Cartel Office. 

• Where the Patent Office 

and the Federal Cartel 

Office cannot agree on 

approval, the matter is 

presented to the Federal 

Minister for Justice, who 

decides on the matter in 

consultation with the 

Federal Minister for the 

Economy. 

• Authorization may be 

revoked.28 

• Relevant CMO presumed 

to administer rights unless 

rightsholder objects within 

six weeks of notice of 

work’s entry in Register of 

Out of Commerce Works. 

• Thereafter, rightsholder 

may object to CMO 

administration at any 

time.29 

• Arbitration: any party 

may apply to Arbitration 

Board, which shall 

propose a settlement. 

Settlement proposal is 

deemed accepted if no 

objection is filed within 

one month. 

• Appeal: judiciary. For 

disputes involving 

remuneration rates or the 

conclusion or amendment 

of an inclusive contract, 

arbitration must precede 

initiation of judicial 

proceedings.30 

• CMO must distribute 

revenue according to a 

fixed distribution plan.31 

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Comparative Summary of Select Extended Collective Licensing Provisions
 

Country Covered Activities Government Oversight Opt-Out Provisions Dispute Resolution 

Mechanism 

Use of Funds 

Hungary • Extended collective licensing is not a 

separate category of licensing. All three 

types of collective rights management 

(compulsory, voluntary, and statutorilyprescribed) have extended effect. 

32 

• Statute does not limit categories of 

eligible works or uses. 

33 

• All CMOs approved and 

subject to annual review 

by Hungarian Intellectual 

Property Office (HIPO).34 

• HIPO may revoke 

authorization. 

35 

• Where multiple CMOs 

represent same category of 

rightsholders, must agree 

on which CMO will enjoy 

“extended” effect of 

licensing. HIPO designates 

CMO in event of lack of 

agreement.36 

• Limitation on opt-out 

period: must opt out more 

than three months before 

the end of the calendar 

year; opt-out takes effect 

no earlier than the first day 

of the following year. 

• Opt-out not available 

where statute prescribes 

compulsory collective 

rights management.37 

• Fees approved by HIPO 

with solicited input of 

“significant users” and 

representative user 

organizations in lieu of 

adversary dispute 

resolution process. 

• HIPO reviews CMO 

behavior once a year or as 

needed.38 

• CMO must undertake 

search for 

unknown/unlocatable 

rightholders, taking all 

necessary measures 

expected in given 

situation. 

• CMO must retain 

undistributed funds for at 

least one year in a separate 

account. 

• Undistributed funds may 

be used for purposes 

advancing CMO’s 

rightholders’ interests, 

particularly cultural and 

social. Specific rules in 

statute.39 

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Comparative Summary of Select Extended Collective Licensing Provisions
 

Country Covered Activities Government Oversight Opt-Out Provisions Dispute Resolution 

Mechanism 

Use of Funds 

Iceland • Photocopying: photocopying or 

reproduction of works in a similar 

fashion for business purposes. 

• Broadcast: performance by 

broadcasting stations of smaller literary 

or musical works (e.g., individual 

poems, short stories, essays, individual 

songs, or smaller musical works) or 

sections of larger works. Does not 

include dramatic works. 

• Rebroadcast: simultaneous 

rebroadcast to the public via cable of 

broadcast works. 

• Visual art: display on television of 

previously presented works. 

• Rebroadcast of performances: 

simultaneous rebroadcast to the public 

via cable of broadcast performances.40 

• Approval by Ministry of 

Education, Science and 

Culture.41 

• Opt-out allowed except 

for cable rebroadcast of 

works and performances.42 

• Three-person committee 

appointed by Ministry of 

Education, Science & 

Culture. Committee ruling 

is the final administrative 

decision. 

• Either party may submit 

dispute to committee if it 

involves reimbursement 

for photocopying, cable 

rebroadcast of work or 

performance, or television 

display of visual art.43 

• Claims for remuneration 

for photocopying must be 

submitted within four 

years of use.44 

• Non-members of CMOs 

enjoy same right of 

remuneration for use of 

their works as members. 45 

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Comparative Summary of Select Extended Collective Licensing Provisions
 

Country Covered Activities Government Oversight Opt-Out Provisions Dispute Resolution 

Mechanism 

Use of Funds 

Norway • Educational activities: copying of 

published works, fixation of broadcasts. 

Educational purposes only. 

• Institutions, commercial enterprises, 

etc.: copying of published works, 

fixation of broadcasts. 

• Archives, libraries, and museums: 

copying and making available to the 

public of published works in 

collections. 

• Use by disabled: fixation of published 

films or pictures, with/without sound, 

and transmitted broadcasting programs 

not essentially consisting of musical 

works, for use by disabled. 

• Broadcasting: broadcasting of 

published works, including issued 

works of art and photographic works, 

but not including stage and 

cinematographic works. 

• Works in broadcasters’ collections: 

broadcasters may use works in their 

collections broadcast before January 1, 

1997 in connection with new broadcasts 

or transmission so that individual can 

choose the time and place of access. 

• Retransmission of broadcasts: 

communication to the public, by 

simultaneous and unaltered 

retransmission, of works included in 

broadcasts.46 

• Approval by Ministry of 

Culture. 

47 

• Opt-out allowed for 

broadcasting of published 

works and use of works in 

broadcasting 

organizations’ 

collections.48 

• Mediation: for most 

covered uses, each party 

may demand mediation. 

Where parties so agree, 

conditions for copying or 

interpretation of agreement 

may be determined 

through binding 

proceeding.49 

• For simultaneous and 

unaltered retransmissions, 

where a party refuses 

mediation or mediation 

fails to produce a result 

within six months, either 

party may demand that 

terms be determined by a 

commission.50 

• Claims for remuneration 

must be put forward within 

three years of the end of 

the year in which the use 

occurred.51 

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Comparative Summary of Select Extended Collective Licensing Provisions
 

Country Covered Activities Government Oversight Opt-Out Provisions Dispute Resolution 

Mechanism 

Use of Funds 

Sweden • Activities of public authorities, 

enterprises, and organizations: copy, 

communicate, and perform literary 

works and works of fine arts that have 

been made public. 

• Educational activities: reproduction 

for educational purposes of works that 

have been made public. 

• Certain libraries and archives: make 

copies of works that form part of their 

own collections, and make available 

works that have been made public. 

• Radio and television transmissions: 

broadcast literary, musical, and fine art 

works that have been made public. If 

part of radio or television broadcast, 

may communicate to the public and 

make copies necessary for 

communication. Does not apply to 

stage works. 

• Retransmission: transmit to public, 

simultaneously and in unaltered form, 

works that form part of wireless sound 

radio or television broadcast. 

• Communication to the public by sound 

radio or television organizations: 

communication to the public of works 

that have been made public and form 

part of organization’s own productions 

or productions commissioned by 

organization and broadcast before July 

1, 2005. 

• General ECL: reproduction or making 

available to the public of works that 

have been made public.52 

• Approval not required.53 • Opt-out allowed for all 

ECLs except 

retransmission of 

broadcast works.54 

• Mediation: for several 

covered uses, any party 

may request mediation 

before governmentappointed mediator. 

• If parties do not agree to 

solution, mediator may 

propose arbitration. 

Where parties do not agree 

to arbitrate, government is 

notified.55 

• District Court of 

Stockholm has jurisdiction 

over cases involving radio 

and television 

transmissions and 

retransmission of 

broadcast works.56 

• Claims for remuneration 

must be put forward within 

three years from the end of 

the year in which the use 

occurred.57 

9
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comparative Summary of Select Extended Collective Licensing Provisions
 

Country Covered Activities Government Oversight Opt-Out Provisions Dispute Resolution 

Mechanism 

Use of Funds 

United • General ECL: regulations do not limit • Approval by Secretary of • Opt-out allowed for all • Users may refer licensing • CMO must distribute 

Kingdom categories of works or uses eligible for 

ECL. 

58 

State. 

• For five-year period 

initially, with possibility of 

renewal. Subject to 

revocation by Secretary.59 

ECLs.60 scheme to Copyright 

Tribunal, which can 

determine reasonable 

terms.61 

funds within nine months 

of the end of the financial 

year in which royalty was 

collected. 

• CMO must forward 

undistributed license fees 

to Secretary three years 

after end of financial year 

of receipt, unless Secretary 

directs CMO to retain for 

additional period. 

• Secretary retains 

undistributed funds for 

eight years after CMO’s 

authorization, then may 

use them to fund social, 

cultural, and educational 

activities for the benefit of 

non-member 

rightsholders.62 

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Notes: 

 Chart reflects high-level summaries of applicable foreign laws. For detailed information, please refer to statutory text.
 

 Citations are based on currently available public information.
 

 For non-English sources, citations are to the most recent version for which an English translation is publicly available, including unofficial translations.
 

1 Úplné znění zákona č. 121/2000 Sb., o právu autorském, o právech souvisejících s právem autorským a o změně některých zákonů (autorský zákon), jak vyplývá ze
	

změn provedených zákony č. 81/2005 Sb., č. 61/2006 Sb., č. 216/2006 Sb. [Consolidated Version of Act No. 121/2000 Coll., on Copyright and Rights Related to
 

Copyright and on Amendment to Certain Acts (the Copyright Act), as amended by Act No. 81/2005 Coll., Act No. 61/2006 Coll. and Act No. 216/2006 Coll.] art. 

101(9) (Czech), translated at http://www.wipo.int/wipolex/en/text.jsp?file_id=137175 (unofficial translation), last amended by Act No. 356/2014 of Dec. 18, 2014
 

(translation unavailable; chart relies on 2006 version of the law).
 

2 Id. art. 98(1).
 

3 Id. art. 99.
 

4 Id. art. 101(9).
 

5 Id. art. 102(1).
 

6 Id. art. 102(5).
 

7 Id. art. 101(10).
 

8 Id. art. 101(12).
 

9 LBK nr 202 af 27/02/2010 Gældende (Ophavsretsloven) [Consolidated Act on Copyright 2010] §§ 13(1), 14(1), 16b(1), 17(4), 24a(1), 30(1), 30a(1), 35(1), 50(1),
 

(2) (Den.), translated at http://www.wipo.int/wipolex/en/text.jsp?file_id=191420 (unofficial translation), most recently published as LBK nr 1145 af 23/10/2014
 

Gældende (Ophavsretsloven) [Consolidated Act on Copyright 2014] (translation unavailable; chart relies on 2010 version of the law).
 

10 Id. § 50(4).
 

11 Id. §§ 24a(1), 30(2), 30a(2), 50(2).
 

12 Id. § 52(1), (3).
 

13 Id. §§ 13(5), 14(2), 16b(2), 17(3), 24a(2), 30(6), 35(3), 48(1).
 

14 Id. § 51(2).
 

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15 Tekijänoikeuslaki 404/1961 (muutos 307/2010) [Copyright Act (amended through 307/2010) §§ 13, 13a(1), 14(1), 16d, 25a(2), 25f(1)-(3), 25g(1), 25h(1) (Fin.), 

translated at http://www.finlex.fi/en/laki/kaannokset/1961/en19610404.pdf (unofficial translation), last amended by Act 608/2015 of May 22, 2015 (translation 

unavailable; chart relies on 2010 version of the law). 

16 Id. § 26(1), (2).
 

17 Id., §§ 13, 13a(3), 14(4), 16d(2), 25a(2), 25f(1), 25g(2), 25h.
 

18 Id. § 54.
 

19 Id. § 26(5). 

20 Loi 2012–287 du 1er mars 2012 relative â l’exploitation numérique des livres indisponibles du xxe siécle [Law 2012–287 of March 1, 2012, on the Digital 

Exploitation of Unavailable Books], JOURNAL OFFICIEL DE LA RÉPUBLIQUE FRANÇAISE [J.O.] [OFFICIAL GAZETTE OF FRANCE] Mar. 2, 2012, p. 3986 (codified at 

CODE DE LA PROPRIÉTÉ INTELLECTUAL arts. L. 134-1, L. 134-3 I) (Fr.) (translation unavailable); see also Jane C. Ginsburg, Fair Use for Free, or Permitted-butPaid? 41-42 (Columbia Law Sch. Ctr. for Econ. Studies, Working Paper No. 481), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2444500. 

21 CODE DE LA PROPRIÉTÉ INTELLECTUAL art. L. 134-3 I. 

22 Id. art. L. 134-4. 

23 Id. art. L. 134-5. 

24 Id. art. L. 134-6. 

25 Id. 

26 Id. art. L. 134-9. 

27 Gesetz über die Wahrnehmung von Urheberrechten und verwandten Schutzrechten (Urheberrechtswahrnehmungsgesetz) [UrhWahrnG] [Law on the 

Administration of Copyright and Neighboring Rights], Sept. 9, 1965, BGBL. I at 1294, as amended by Gesetz [G], May 8, 1998, BGBL. I at 902 (Ger.), translated at 

http://www.wipo.int/wipolex/en/text.jsp?file_id=126251 (unofficial translation), last amended by Gesetz [G], Oct. 1, 2013, BGBL. I at 3728, art. 2, § 13d(1), 

translated at https://www.vgwort.de/fileadmin/pdf/allgemeine_pdf/out_of_commerce_law_2013.pdf (unofficial translation). An English translation is available only 

for sections 13d and 13e of the 2013 amendments. The other citations below are to the 1998 version of the law. 

28 Id. §§ 1(1), 2, 4, 18. 

29 Id. § 13d(1).5, (2). 

30 Id. §§ 14(1), 14a(2)-(3), 16(1)-(2). 

12
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

31 Id. § 7. 

32 NAGYKOMMENTÁR A SZERZŐI JOGI TÖRVÉNYHEZ [GRAND COMMENTARY ON THE COYPRIGHT ACT], § 87, 1. pont (Péter Gyertyánfy, ed., 2014) (Hung.). 

33 See 1999. évi LXXVI. törvény a szerzői jogról [Act LXXVI. of 1999 on Copyright] arts. 85, 87(1), 91(2)-(3) (Hung.) (effective from Oct. 29, 2014) (translation 

unavailable; chart relies on official Hungarian version of the law) (a translation of the previous version of the Act, expired Oct. 29, 2014, is available at 

http://www.hipo.gov.hu/English/jogforras/hungarian_copyright_act.pdf). 

34 Id. arts. 87(2), (4), 92/A, 92/E, 92/H.
 

35 Id. art. 92/K(6)(d).
 

36 Id. art. 87(2).
 

37 Id. art. 87(3).
 

38 Id. arts. 92/H(1), (5)-(6), 92/K.
 

39 Id. art. 89(8)-(9).
 

40 Höfundalög 1972 nr. 73 29. Maí, eins og henni var síðast breytt með lögum nr 93/2010 [Copyright Act, No. 73, of 29 May 1972, as amended by Act No. 93 of 21
 

April 2010], arts. 15a, 23, 23a, 25, 45a (Ice.), translated at http://www.wipo.int/wipolex/en/text.jsp?file_id=332081 (unofficial translation), last amended by Act No. 

126/2011 (translation unavailable; chart relies on 2010 version of the law). 

41 Id. 

42 Id. 

43 Id. art. 57. 

44 Id. art. 15a.
 

45 Id. arts. 15a, 23, 23a, 25, 45a.
 

46 LOV 1961-05-12 nr 02: Lov om opphavsrett til åndsverk m.v. (åndsverkloven) [Act No. 2 of May 12, 1961 Relating to Copyright in Literary, Scientific and
 

Artistic Works] as amended on Dec. 22, 2006, §§ 13b, 14, 16a, 17b, 30, 32, 34, 36 (Nor.), translated at http://www.wipo.int/wipolex/en/text.jsp?file_id=248181 

(unofficial translation), last amended by LOV-2014-06-13 nr 22 [Act No. 22 of June 13, 2014] (translation unavailable; chart relies on 2006 version of the law). 

47 Id. § 38a. 

13
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

48 Id. §§ 30, 32. 

49 Id. § 38. 

50 Id. § 36. 

51 Id. § 37. 

52 LAG OM UPPHOVSRÄTT TILL LITTERÄRA OCH KONSTNÄRLIGA VERK [URL] [Act on Copyright in Literary and Artistic Works] (Svensk författningssamling [SFS] 

1960:729), as amended by LAG, June 27, 2013 (2013:691), §§ 42b-42h (Swed.) (unofficial translation on file with United States Copyright Office); last amended by 

LAG, July 8, 2014 (SFS 2014:884) (translation unavailable; chart relies on 2013 version of the law). 

53 See Johan Axhamn & Lucie Guibault, Cross-Border Extended Collective Licensing: A Solution to Online Dissemination of Europe’s Cultural Heritage? 58 

(Amsterdam Law School, Research Paper No. 2012-22, 2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2001347. 

54 URL §§ 42b-42h. 

55 LAG OM MEDLING I VISSA UPPHOVSRÄTTSTVISTER (Svensk författningssamling [SFS] 1980:612) [Act on Mediation in Certain Copyright Disputes] (1995) arts. 2-6 

(Swed.), translated at http://www.wipo.int/wipolex/en/text.jsp?file_id=241666 (unofficial translation), as amended by LAG, May 26, 2005 (2005:361), translated at 

http://www.wipo.int/wipolex/en/text.jsp?file_id=129617 (unofficial translation), last amended by LAG, June 27, 2013 (2013:690) (translation unavailable; chart 

relies on 1995 and 2005 versions of the law).
 

56 URL § 58.
 

57 Id. § 42a.
 

58 Copyright and Rights in Performances (Extended Collective Licensing) Regulations, 2014, S.I. 2014/2588, art. 3, ¶ 1; 4 (“U.K. ECL Regulations”).
	

59 Id. art. 4, ¶¶ 1, 6; arts. 9, 14.
 

60 Id. art. 4, ¶ 4(d); art. 16.
 

61 Copyright, Designs and Patents Act, 1988, pt. 1, c. 7, §§ 118-121; see also U.K. INTELLECTUAL PROPERTY OFFICE, EXTENDING THE BENEFITS OF COLLECTIVE 

LICENSING 18 (2013), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/308286/consult-2013-ecl.pdf (“[The] Government 

believes there is existing jurisdiction for the Copyright Tribunal to make determinations about the reasonableness of ECL schemes.”). 

62 U.K. ECL Regulations, S.I. 2014/2588, art. 18, ¶ 3; art. 19. 

14
 
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