This Copyright Office report concerns copyrighted works where the owner is impossible or difficult to locate. I'll have to read the whole report but I believe it applies to both published and unpublished works. And this is still in the premimary stage: legislation would have to be introduced and passed by Congress in order to take effect.
As for the other issue you mentioned (published copyrighted works where the owner is known but the work is not commercially available), that was addressed in Public Law 109-9 (passed April 2005). That public law says that for works in their last 10 years of copyright (presently covering films in the years 1923-1930), a library or archives can make a work available if it is not already commercially available.
Steve Leggett, Staff Coordinator
National Film Preservation Board
Library of Congress (4690)
Washington, D.C. 20540
email: [log in to unmask]
Also visit the Web site of our charitable
affiliate, the National Film Preservation
"It is amazing what can be accomplished when no
one cares who gets the credit." -- Harry S. Truman
>>> Jessica Rosner <[log in to unmask]> 01/31/06 8:12 PM >>>
um I hate to be stupid but what does this mean
in practical terms ? If there is say a studio owned copyrighted
silent film that the studio has not desire to make available or license
does this change anything? Or does this just apply to films still under
copyright when there is no way to locate the copyright holder?
>From: Stephen C Leggett <[log in to unmask]>
>Sent: Jan 31, 2006 7:47 PM
>To: [log in to unmask]
>Subject: Re: [AMIA-L] Copyright Office Report on Orphan Works
>To cut to the chase, here is the PROPOSED statutory language (found at end of report)
><<<C. Recommended Statutory Language
>SECTION 514: LIMITATIONS ON REMEDIES: ORPHAN WORKS
>(a) Notwithstanding sections 502 through 505, where the infringer:
>(1) prior to the commencement of the infringement, performed a good faith, reasonably
>diligent search to locate the owner of the infringed copyright and the infringer did not locate
>that owner, and
>(2) throughout the course of the infringement, provided attribution to the author and
>copyright owner of the work, if possible and as appropriate under the circumstances,
>the remedies for the infringement shall be limited as set forth in subsection (b).
>(b) LIMITATIONS ON REMEDIES
>(1) MONETARY RELIEF
>(A) no award for monetary damages (including actual damages, statutory damages,
>costs or attorney's fees) shall be made other than an order requiring the infringer to pay
>reasonable compensation for the use of the infringed work; provided, however, that
>where the infringement is performed without any purpose of direct or indirect
>commercial advantage, such as through the sale of copies or phonorecords of the
>infringed work, and the infringer ceases the infringement expeditiously after receiving
>notice of the claim for infringement, no award of monetary relief shall be made.
>(2) INJUNCTIVE RELIEF
>(A) in the case where the infringer has prepared or commenced preparation of a
>derivative work that recasts, transforms or adapts the infringed work with a significant
>amount of the infringer's expression, any injunctive or equitable relief granted by the
>court shall not restrain the infringer's continued preparation and use of the derivative
>work, provided that the infringer makes payment of reasonable compensation to the
>copyright owner for such preparation and ongoing use and provides attribution to the
>author and copyright owner in a manner determined by the court as reasonable under the
>(B) in all other cases, the court may impose injunctive relief to prevent or restrain the
>infringement in its entirety, but the relief shall to the extent practicable account for any
>harm that the relief would cause the infringer due to the infringer's reliance on this
>section in making the infringing use.
>(c) Nothing in this section shall affect rights, limitations or defenses to copyright infringement,
>including fair use, under this title.
>(d) This section shall not apply to any infringement occurring after the date that is ten years from
>date of enactment of this Act.
>>>> [log in to unmask] 01/31/06 6:55 PM >>>
>207 pp with appendices
>130-page version without appendices