What if you can't locate a copyright owner?

Information Outlook, August, 2005 by Lesley Ellen Harris

How many times have you been unable to locate the copyright owner of a specific manuscript, article, or photograph, and either took the risk of using the work without obtaining permission, or reluctantly (and legally) used alternative material? Researchers, librarians, and corporations around the world have been increasingly facing such issues as we all try to increase our copyright awareness and compliance.

Previous U.S. Copyright Law

Three changes in U.S. copyright law have increased the problem of locating copyright authors and owners. These changes relate to copyright renewals, voluntary registration of works with the U.S. Copyright Office, and an increased duration of copyright protection.

Under the previous U.S. copyright law, copyright owners were required to renew their copyrights with the Copyright Office, which in turn provided a method for users of copyright-protected materials to locate authors and owners of works. When the current U.S. Copyright Act became law, the requirement for a copyright owner to renew his copyright after a 28-year period was removed for works registered after 1978, and by 1992, the renewal period was completely eliminated. Although this is a benefit for copyright owners, not having to deal with the paperwork of renewing copyrights, it also means that copyright owners' "paperwork" in the U.S. Copyright Office is not as up to date and not as helpful to those searching for copyright authors and owners.

In 1989, when the U.S. joined the Berne Convention, copyright in the U.S. became automatic upon the creation of a work, and registration, though still beneficial, is no longer required. Again, this has made it more difficult for those searching for authors and owners of copyright-protected works.

In 1998, the Sonny Bono Copyright Term Extension Act extended the duration of copyright in the U.S. from 50 to 70 years after an author's death. Of course, this increased the period of time in which a user of copyright-protected materials must obtain permission to use a work by an additional 20 years, adding to an already problematic situation of locating copyright authors and owners.

Other countries such as Canada and the United Kingdom that have never had copyright renewals and also have voluntary registration have provisions in their laws to address the issue of unlocatable copyright owners (and the problem of trying to use copyright-protected works where permission cannot be obtained.)

Canada

In 1998, a provision for obtaining a license for the use of works by unlocatable copyright owners was added to the Canadian Copyright Act. Decisions are made on a case-by-case basis through application to the Copyright Board. Under section 77 of the Canadian Copyright Act, a license can be issued by the Canadian Copyright Board to an applicant where they can prove they made reasonable efforts to locate the owner of the copyright. If the Board is satisfied by the applicant's efforts of emails, phone calls, written correspondence, approaches to copyright collectives, Internet searches, etc., then it may issue a non-exclusive license which is valid only in Canada, subject to any terms and conditions it sees fit. To date, 153 licenses have been issued by the Board for various uses such as:

* The mechanical reproduction of musical works.

* The reproduction of architectural plans.

* The reproduction and incorporation of a film clip into another film.

* The reproduction in a book of a cartoon.

* The reproduction, public performance and the communication to the public of sheet music on a Web site.

Further information on these and other licenses may be found at: www.cbcda.gc.ca.

United Kingdom

The United Kingdom has a more limited provision relating to orphan works. The U.K. copyright statute (the Copyright, Designs and Patents Act) permits the use of an orphaned work only where it is reasonable to assume the copyright has expired. This law provides that an infringement does not occur where the copyright owner cannot be located by a reasonable inquiry. Also, the date of copyright expiration must be uncertain, and it must be reasonable to assume that the copyright has expired.

Orphan Works in the U.S.

Although there is no current U.S. legislation regarding unlocatable copyright owners the U.S. Copyright Office has been soliciting comments on orphan works. The deadline for submitting comments and reply comments has now passed, but these comments and reply comments can be accessed at: http://www.copyright.gov/orphan/index.html. Public roundtable discussions were held in late July 2005 in Washington DC and Berkeley, California. In light of the many challenges resulting from being unable to locate copyright owners, the U.S. government is examining the following issues in its inquiry:

* The nature of the difficulties encountered in getting permission to use works.

* Who is encountering these difficulties.

* What exactly are the barriers to locating copyright owners.

* How should an "orphan work" be defined.

* If an approach like Canada is followed, what should be considered "reasonable." effort to locate a copyright owner.