March 25, 2005
Mr. Jule L. Sigall
Associate Register for Policy & International Affairs
U.S. Copyright Office
James Madison Memorial Building, Room-401
101 Independence Ave., S.E.
Washington, D.C. 20540
ORPHAN WORKS NOTICE OF INQUIRY – 70 Federal Register 3739 (Jan. 26, 2005)
Dear Mr. Sigall:
On behalf of the National Humanities Alliance (NHA), we would like to thank the Copyright Office for inviting comments on this important issue. NHA represents more than 80 national, state, and local nonprofit organizations, including scholarly and professional associations; higher education associations; organizations of museums, libraries, historical societies, and state humanities councils; university-based and independent humanities research centers. A list of members is attached. The Alliance was founded in 1981 to advance the cause of the humanities by promoting the common interests of its members with regard to national policy and legislation affecting scholarly research and public understanding of the humanities. The humanities encompasses a broad range of scholarly disciplines, including: languages, linguistics, literature, history, law, philosophy, archaeology, comparative religion, and ethics, and the history, criticism, and theory of the arts.
We write to you to today out of concern for many members of our community, including those engaged in teaching, scholarly research, and preservation, as they confront the problem of "orphan works" on a day-to-day basis. Their inability to identify the owners of many works that are presumptively subject to copyright, despite best efforts to do so, means that various projects must be modified or abandoned to avoid potential liability for copyright infringement. Both our members and the larger public we serve must bear the costs of the current, unsatisfactory situation.
Written works, as well as film, photographs, drawings, music and other media constitute the primary materials for scholarly books and articles; classroom curricula; film, television and radio shows and documentaries; museum and library exhibits. A growing number of internet- based projects in the humanities (including teacher resources, documentary editing projects, archives, historical sites) make rich use of images and sound files, photographs and scanned documents. When an organization, scholar or educator is forced to abandon the use of an "orphan work", out of fear of copyright infringement liability, the result may be a new work of lesser value, or a diminished educational tool.
Recognizing the importance of the "orphan works" problem, and the need for a balanced solution to it, the National Humanities Alliance endorses the approach to its resolution proposed in the comments filed by the Glushko-Samuelson Intellectual Property Law Clinic in response to this Notice of Inquiry. Briefly, this approach involves a broad definition of what may constitute an "orphan work," including both older and newer works, and both published and unpublished ones. This definition is coupled with a statutory procedure under which a would-be user is encouraged to make "reasonable efforts" to identify the copyright owner. If those efforts proved unsuccessful, the "orphan work" could be made available (or incorporated into a new work) with confidence that if the copyright owner subsequently came forward, this use could continue and the damages the owner could receive would be limited. By the same token, the copyright owner would retain the authority to license future uses of the work. In sum, this proposal promotes the cultural progress which is the ultimate objective of our copyright system. And it does so by meeting the needs of responsible users and the public without depriving individual copyright owners of their valuable intellectual property.
Thank you for your consideration of these comments. The National Humanities Alliance looks forward to participating further in this important inquiry.
Sincerely,
Jessica Jones Irons Interim Executive Director
