RE: more on orphan works

[Carl Johnson <carl_johnson@xxxxxxx>]

I would like to see more discussion and effort towards encouraging and
incentivizing the copyright owners to "make themselves and their ownership
claims" more obviously extant.

Why is it that in dealing with real property, there is usually not near the
difficulty in learning who the property owner is and consummating a valid
transaction than in the intellectual property world? It seems that in the real
property world the responsibility for documenting ownership of real property
is done by multiple groups and interests, but not so in the copyright world.
Why? Has our legal, judicial, policy, procedural and best practice regimes
failed us in the copyright world? Why isn't there more compelling interests
for copyright owners to be more proactive about their whereabouts?  What is it
about our societal and public interest behavior that spurns some copyright
owners to "orphan" their creative works?

I wish I knew the answers to these questions. Perhaps we are focusing on the
wrong group, that is, the possible users of copyrighted works.  Rather, we
should be more focused on influencing the behavior of the copyright owners
than trying to define the reasonable search standards of the possible users.
Perhaps there are some things we could learn from examining the transactional
dynamics of real property transfers, leasing, renting, access and the like.

In summary, encouraging copyright owners to "make themselves and their
ownership claims" more easily known might be a better result than trying to
define "reasonable search".

Carl Johnson
Copyright Services
Brigham Young University
801 422-3821


-----Original Message-----
From: Carrie Russell [mailto:crussell@xxxxxxxxxxx]
Sent: Tuesday, February 26, 2008 10:03 AM
To: digital-copyright@xxxxxxxxxxxxxx
Subject: more on orphan works

Another orphan works point:



In recent orphan works discussions on the Hill, certain interests would
like the US Copyright Office to define a reasonable search.  In a way,
the Office already does in their "asking for permission" circular.  Of
course, we knew going in that, depending on the format and publication
status, reasonable searches would look different.  Looking for
permission to use a news article will always be different than looking
for permission to use a musical score etc.  But what we also need to
explain (and we do have a zillion examples to help do this), is that
even within a category (published books, for example), one will take
differing routes - sometimes renewal records, sometimes looking at
probate records, sometimes business records to find out who bought a
publishing company, etc. The majority of all reasonable searches will
look different.



What seems to be most important to me is lowering the level of
reasonable.  The search cannot be too onerous because people will end up
not using orphan works because they don't have the time, money or
expertise to spend weeks looking for a copyright holder. We gain
nothing. This will be another area - like fair use - when we have to
accept some ambiguity and some willingness to take a risk.



I guess what I am saying is that best practices for reasonable searches
should remain fairly general. Provide guidance but not to the level of
exhaustion. We have many sources that already do this (Crews, Harper
etc).  Let's not raise the bar. Those who are risk averse can be
exhaustive if they choose, but we shouldn't promote that.



In my opinion, we over-reacted to the requirements for TEACH. We made it
too hard to be compliant. Let's not do that again. By our own behavior,
let's shape the law in our interests.



-Carrie Russell

Copyright Specialist

ALA Washington Office

Office for Information Technology Policy

1615 New Hampshire Avenue NW First Floor

Washington, DC 20009

crussell@xxxxxxxxxxx