Beginning of June, the U.S. Copyright Office has published a report on « Orphan Works and Mass Digitization ».
Having reviewed the problem of orphan works under U.S. copyright law by taking into consideration also foreign solutions, the Copyright Office proposes to implement a legislative framework to limit the liability for good faith users.
The proposed legal framework avoids some shortcomings of the Orphan Works Directive (OWD) in Europe. The scope is broader and not limited to online and non-commercial uses. More important is the productive re-use of orphan works by artists, musicians, and documentary filmmakers to create new works.
Similar to the OWD, a faithful diligent search needs to be conducted prior to any use, which must be « reasonable and appropriate to the circumstances ». The monetary relief for commercial users should be limited to a reasonable compensation, which is defined as « the amount that a willing buyer and a willing seller would have agreed upon immediately before the use began ».
The proposed legislation should be a « safe harbor » for non-commercial institutions using orphan works: If an eligible institution (non-profit educational institutions, museums, libraries, archives, or public broadcasters) immediately ceases to use the work, the court cannot order them to pay compensation.