26 May 2006

Another Shoe Drops

Well, another shoe has dropped on copyright: H.R. 5439. This bill would establish a statutory orphan-works exception. Or, in any event, would seem to…

The most-obvious snarl is in the definition of a search satisfactory to invoke this new § 514 limitation on remedies.


(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, 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

(v) best practices for documenting a reasonably diligent search.

I'm not sure this sets a world record for the most uses of "reasonable" (in some form) in a draft statute, but it seems to hold the record in a statute concerning intellectual property.

In any event, this includes a significant requirement that the Register's Report on Orphan Copyrights (PDF, 1mb) neglected: it establishes an authoritative resource to perform that "reasonably diligent" search. It still doesn't fix the logical flaw in the entire discussion: the emphasis on solving orphan problems instead of preventing them. There does need to be a way to deal with orphans; we should devote at least as much effort to preventing orphans as to limitations on remedies and to search systems.