Helpful Info for Composing your Responses to the Copyright Office
Your Letters are Essential
Understanding how to reply to the “Next Great Copyright Act” can seem complicated at first, but its consequences will be far-reaching for artists of all disciplines. Therefore, it is important you reply with your sincere thoughts to the Copyright Office’s “Notice of Inquiry” and submit them by the deadline, July 23, 2015!
Basics
MALC feels strongly that the orphan work “problem” is vastly overstated. The truly orphaned works that do exist can be managed quite easily (see “short summary” below).
The Copyright Office’s recommendation that artists submit their work to private registries (as a help in avoiding infringement) constitutes a great burden in time and resources for most artists.
Applies to All Categories of Work, All Types of Use
Commercial use in today’s internet marketplace encompasses a wide range of uses. Should you happen to discover your work listed in the Office’s text-based “Notice of Use” registry, you will know your work has been published as “orphaned”, meaning that a “good faith” infringer couldn’t discover how to contact you under the Copyright Office’s six-step “diligent search”.
At this point, your remedy for compensation will be limited to negotiating a “reasonable” fee with the infringer based on “current market rates”. If agreement can’t be reached, the Office proposes a “Small Claims” process where a court will decide what the reasonable fee should be. The burden of proof is on the artist to prove their rate is “reasonable”. And, your time and attorney fees will come out of your pocket, a dramatic change from current copyright law. Under current US copyright law, if the work was registered with the Copyright Office, compensation for attorney fees are covered and statutory damages are awarded, and all risk is on the infringer to publish without your knowledge.
(Note that even if your work is registered with the Copyright Office and a “good faith” infringer – one who “diligently searched” – publishes it, you will still be limited to “reasonable compensation” under the new proposal, with only slight extra consideration to acknowledge your registration with the Office.)
Easy Steps to Understanding
MALC lists below the ways you can approach the issue, starting from a useful, brief summary, for those with limited time, and moving progressively down to resources with more detail.
For a short summary, you can find key points in this written reply to the Copyright Office:
Orphan Works and Mass Digitization, Additional Comments, May 21, 2014
For supporting information on the above:
Orphan Works and Mass Digitization, Initial Comments, February 3, 2013
For even more detail, pay attention to these sections of the Copyright Office’s 2015 Orphan Works and Mass Digitization Report, as listed in their Table of Contents:
II. ORPHAN WORKS
B. Solutions to the Orphan Works Problem
5. Limitations on Liability Model: The Copyright Office’s Recommendation………………..50
a. Applicability to All Categories of Works ………………….51
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 Search……..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. Monetary Relief: “Reasonable Compensation: ……………………..63
ii. Safe Harbor for Certain NonProfit Institutions and Uses ……64
iii. Effect of Registration on Monetary Damages ……………………..66
iv. Injunctive Relief ………………..67
v. Injunctive Relief: Limitations Regarding State Actors………….69
Letters to the Copyright Office are due July 23, 2015
Make your best case in a respectful, reasoned way. Refer back to our earlier call for additional reference and submit your letters online here.