Federal Register / Vol. 77, No. 204 / Monday, October 22, 2012 / Notices 64555 

1See 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. 

2The 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. 

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 

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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3These 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. 

4Letter of Marybeth Peters, Register of 

Copyrights, U.S. Copyright Office (Sept. 25, 2008), 

available at http://www.copyright.gov/orphan/. 

5See Orphan Works Report at 93–120. 

6 Id. at 108–10. 

7 Id. at 115–21. 

8Proposed 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). 

9See 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). 

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 

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 

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. 


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10For 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). 

11See Authors Guild, Inc., 770 F. Supp. 2d at 

670–71. 

12Statement 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. 

14See Authors Guild, Inc., 770 F. Supp. 2d 666. 

15 Id. at 670. 

16 Id at 677. 

17 Id. 

18 Id. 

19 Id. at 678. 

20See Statement of the Ass’n of Am. Publishers, 

Publishers and Google Reach Settlement (Oct. 4, 

2012), available at http://www.publishers.org/press/ 

85/. 

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 

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 

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 


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21Authors Guild, Inc. v. HathiTrust, No. 11–6351 

(S.D.N.Y. filed Sept. 12, 2011). 22First Am. Compl. at page 28, Authors Guild, 

Inc. v. HathiTrust, No. 11–6351 (S.D.N.Y 2011). 23A 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). 24See 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). 25See 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). 

26 Id. at 1 (citations omitted). 

27The 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). 

28See id. 

29 Id. at *14. 

30 Id. at *7–8. 

31For 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. 

32United 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. 

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 

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 

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 


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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. 

34See Analysis at App. F (listing countries that 

follow this approach and providing an overview of 

the laws). 

35European 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. 

36The 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. 

37See Directive of the European Parliament and 

of the Council on Certain Permitted Uses of Orphan 

Works, Art. 1(1), available at http:// 

register.consilium.europa.eu/pdf/en/12/pe00/ 

pe00036.en12.pdf. 

38 Id. at p. 13, ¶ 21. 

39Memorandum 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. 

40Enterprise 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. 

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 

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 

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 


wreier-aviles on DSK5TPTVN1PROD with 
64560 Federal Register / Vol. 77, No. 204 / Monday, October 22, 2012 / Notices 

41See 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. 

43See 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.’’). 

44Copyright 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. 

46Orphan Works Report at 82–83. 

47See 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. 

48See Law Number 2012–287, Art. 134–4. 

49See id., Art. 134–8. 

50See 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. 

51See 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. 

52See Consolidated Act on Copyright 2010, No. 

202, Art. 50–51 (2010) (Den.); see also Copyright 

Act, No. 404, §§ 13–14 (2010) (Fin.). 

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 

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 

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 


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 


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