STM Releases Statement on 'Orphan Works'

[Liblicense-L Listowner <liblicen@pantheon.yale.edu>]

Of possible interest.

---------- Forwarded message ----------
Date: Wed, 27 Dec 2006 15:30:59 +0100
From: Janice Kuta <kuta@stm-assoc.org>
To: kuta@stm-assoc.org
Subject: STM Releases Statement on 'Orphan Works'

STM has issued a position statement and press release on The Use 
of Orphan Works. An orphan work is a copyrighted work for which 
the user can't identify and/or contact the legitimate holder to 
obtain permission to use the work. Because of this difficulty, 
orphan works risk exclusion from the cycle of creation and 
exploitation. The principles outlined in the STM position 
statement should serve as an effective guide to resolving many of 
the issues that have been identified.

Janice E. Kuta
Director of Marketing & Membership
International Association of Scientific, Technical & Medical Publishers
E-mail: kuta@stm-assoc.org
Tel: 212-533-0832
Fax: 212-420-8407
www.stm-assoc.org

______

STM Position

The Use of Orphan Works

Publishers, like authors and other creators, rely on copyright. 
Copyright promotes arts, literature and science by vesting 
creators and their selected agents with exclusive rights. 
Publishers, however, believe that society and laws require 
flexibility, and copyright law inparticular requires specific 
exceptions to ordinary liability for use which, in their own way, 
further the goals of copyright. One such possible exception to 
liability, known as the orphan works issue, have recently been 
recognized by the United States Copyright Office as worthy of 
legislation, and similar issues are being raised in the European 
Union.

This position paper is based on a paper prepared by the 
International Publishers' Association, and echoes thesentiments 
expressed therein

Orphan works are copyrighted works for which the user is unable 
to identify, locate and/or contact the legitimate holder of the 
relevant rights (copyright owner) for the purpose of obtaining 
permission to use her/his works. Such “orphan works” risk 
exclusion from thecycle of creation and exploitation, as 
copyright compliant users may prefer non-use over therisk of 
liability for infringement.

To counter this risk, STM strongly supports efforts aimed at 
enabling the use of orphan works. As both producers of 
copyrighted works and users of orphan works, we have experience 
with the issues from both sides, and believe the following should 
be addressed in any regulative initiative in this area:

1. Reasonably diligent, good faith search for the copyright 
owner:

 The potential user of orphan works should be required to conduct 
a thorough search in good faith, with a view to identifying, 
locating and/or contacting the copyright owner, prior to using 
the orphan work.

The reasonably diligent search should necessitate a high level of 
care. However worded, the search standard prescribed should 
require the potential user not only to research 
theidentity/location of the current copyright owner, but also to 
inform her-/himself about thepossible sources where such 
information could be found.

 Any regulative initiative should refrain from prescribing 
minimum search steps orinformation sources to be consulted. Only 
a flexible approach will ensure an adequatesolution dealing with 
the individual circumstances of each orphan work, as well as 
rapidly changing information sources and search techniques.

 Stakeholders should be encouraged to develop standards and 
guidance on what they consider a reasonably diligent search. 
These must be flexible as resources available change and improve.

 The user of an orphan work should bear the burden of proving 
that her/his search was reasonably diligent, and must maintain 
records of his/her efforts to meet that burden.

2. Clear and adequate attribution:

The user of orphan works should be required to provide 
attribution to the copyright owner(s)throughout her/his use of 
the orphan work as clearly and adequately as possible in 
thecircumstances. For example, where a copyright notice is 
present in the orphan work, credit should be given in a manner 
which reflects the notice.

3. Adequate remuneration of copyright owner and/or appropriate 
restitution:

 Any regulative system should provide that a reappearing 
copyright owner is to be offered full remedies in an appropriate 
and reasonable manner, taking into account also the legitimate 
interests of the user in her/his continued exploitation of the 
previously orphaned work.

 The appropriate reinstatement of the exclusive rights of the 
copyright owner should include an entitlement to adequate 
remuneration for the user's use of the previously orphaned work.

 Adequate remuneration should generally be defined as the 
equivalent of alicence fee for the entire use term as it would 
have been negotiated between copyrightowner and user prior to the 
commencement of the use.

 It is our view that renumeration should be negotiated between 
the parties, with recourse to the courts where such negotiations 
fail. Where consistent with local rules, court costs and fee 
shifting should be available to the prevailing party. For 
example, if the user offers a fee which the proprietor deems 
unreasonable, the proprietor should pay legal fees where the 
Court awards a fee equal to or less than the user's offer, and 
the user should pay a feeif the Court awards a greater sum.

4. Limitation on injunctive relief:

Any possibility of injunctive relief against the continued and 
future use of a previously orphaned work should be sufficiently 
flexible to take into account the efforts and investment made by 
a good faith user.

5. Non-exclusivity of use:

The use of orphan works is non-exclusive. A user of orphan works 
can only intervene against further uses of the same orphan work 
where the further use would infringe her/his new rightsin 
derivative works (e.g. translations, adaptations). STM's position 
does not affect the right of copyright owners to ignore or refuse 
requests forlicences for subsequent uses of the orphan works, 
including derivatives thereof.

6. Orphan work defined: Care needs to be taken to ensure that 
works that are not “in print” but are still in copyright and have 
identifiable owners are outside of the definition of orphan 
works.

STM Copyright Committee
December  2006