(Cross-posted; please excuse duplication.)

An editorial by Lesley Ellen Harris on orphan works
and unlocatable copyright owners is in the latest
issue of the print newsletter, The Copyright & New
Media Law Newsletter (http://copyrightlaws.com).  With
permission, it is reproduced below.

Sincerely,

Amritha
amritha@copyrightslaws.com

How many times have you been unable to locate the
copyright owner of a specific manuscript or article or
photograph, and either took the risk of using the work
without obtaining permission, or reluctantly (and
legally) used alternative material?  Researchers,
librarians and corporations have been facing such
issues more and more as we all try to increase our
copyright awareness and compliance.

In 1998, a provision for obtaining a license for the
use of works by unlocatable copyright owners was added
to the Canadian Copyright Act.  The license is issued
by the Canadian Copyright Board.  Decisions are made
on a case-by-case basis through application to the
Board.  If the Board is satisfied by the applicant’s
efforts of e-mails, phone calls, written
correspondence, approaches to copyright collectives,
Internet searches, etc., then it may issue a
non-exclusive license which is valid only in Canada,
subject to any terms and conditions it sees fit.  To
date, 153 licenses have been issued by the Board for
various uses such as:

-the mechanical reproduction of musical works
-the reproduction of architectural plans
-the reproduction and incorporation of a film clip
into another film
-the reproduction in a book of a cartoon
-the reproduction, the public performance and the
communication to the public of sheet music on a Web
site

Further information on these and other licenses may be
found at:  www.cb-cda.gc.ca/.

The United Kingdom (“U.K.”) has a more limited
provision relating to orphan works.  The U.K.
copyright statute permits use of a work in which it is
reasonable to assume the copyright has expired.  This
law provides that an infringement does not occur where
the copyright owner cannot be located by a reasonable
inquiry.  Also, the date of copyright expiration must
be uncertain, and it must be reasonable to assume that
the copyright has expired.

The U.S. Copyright Office has been soliciting comments
on orphan works.  The deadline for submitting comments
and reply comments has now passed, and comments and
reply comments can be accessed at:
http://www.copyright.gov/orphan/index.html.  Public
roundtable discussions will be held in late July 2005
in Washington DC and Berkeley, California.  As the
duration of copyright protection in the U.S. continues
to grow and the formalities (such as registration of
copyright-protected works) are decreasing, many users
of copyright-protected works in the U.S. are finding
it more difficult to obtain permissions from copyright
holders.  In light of these facts, the U.S. government
is examining the following issues in its inquiry:

-The nature of the difficulties encountered in getting
permission to use works
-Who is encountering these difficulties
-What exactly are the barriers to locating copyright
owners
-How should an “orphan work” be defined
-If an approach like Canada is followed, what should
be considered “reasonable” effort to locate a
copyright owner
-What is the role of a registry for owners of possible
orphan works
-Should any new system for orphan works apply to both
published and unpublished works
-How would any proposed system comply with
international copyright obligations

Like all provisions in copyright law, there must be a
balance between the rights of the copyright owner and
fair and reasonable access to works by users of
copyright-protected materials.  This balance may be
found in legislative, regulatory or other solutions.
It will be interesting to see how the U.S. Copyright
Office responds to the conflicting interests that are
being voiced about this issue.

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