> > On Sep 14, 2009, at 2:29 PM, Weinstein, William wrote: > > We are evaluating our policy regarding obtaining rights for images of > works we publish in our online collection section. The issue of what > to do with works where there is an apparent copyright holder that can > either not be contacted or does not respond to repeated permission > requests. Does anyone have a position of what to do regarding works in > this particular state of limbo? > > Bill Weinstein
> Bill, legally if you do not have permission, you may not use the work. > There is no mechanism in US copyright law to help you. However, if > you are based in Canada, there is an unlocatable copyright owner > provision which can help you just in that > circumstance. And it is possible that you can use it if using a > Canadian work (though I would have to double check to see who is > eligible if you are not in Canada.) > > Lesley > > Lesley Ellen Harris > lesley at copyrightlaws.com > www.copyrightanswers.blogspot.com I think this is an incomplete answer. I'm not a lawyer, so I can only speak to how many publishers and museums are addressing this question in practical terms, on the ground. If I've gotten any of the legal aspects wrong, please correct me. There are two kinds of "in limbo" works: 1) Those known still to be in copyright or probably in copyright (because they are not very old), for whom no rights holder can be found; and 2) those whose rights holder ignores repeated efforts to obtain permission. The first group are Orphan Works (OWs)--works still in copyright for whom no known rights holder can be found. Congress has been working on legislation to deal with OWs for several years. Last year the Senate passed an OW bill, but the House version died. It's uncertain whether the bill will be revived any time soon or not. Absent an OW law, users must consider whether they may assert fair use. (At museums, a common type of OWs are archive photos of objects, where the object is out of copyright but the photo is not, the photographer's name is missing, and the museum has no document to indicate that the photo was made as a work for hire.) The second group includes works where the copyright holder has been found and is not responding, or works where it's not absolutely clear who the rights holder really is (e.g., two different nephews of a dead artist both claim to own the rights, or a work by an artist may have been made while he was on staff somewhere and therefore be a work for hire). For the second group, as for the first, fair use may be an option. One also has to evaluate whether the use one wants to make of the work is protected under fair use (or in the UK, under fair dealing). The Stanford Fair Use Project has a very good, clear rundown of fair use and how it works: http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.h tml Fair use depends on the context of the use, so institutions should develop guidelines on fair use in consultation with legal counsel--both for using works in their own collections and for when others use works whose copyrights you control. In the last couple of years there have been some important court decisions strengthening the assertion of fair use for visual images. Thus, it's not always the case that one must not publish a work because the rights have not been cleared. Especially in the case of those OWs where it's pretty clear that there is no living rights holder, publication may be very low-risk. Fair use and fair dealing are US- and UK-specific, and some institutions are concerned that in the internationalized realm of the Internet such laws may not fully protect uses. A practical approach to the problem that some websites and publishers adopt is to make every effort to obtain all permissions, and document the efforts, and then to publish the works with a notice that states: "The museum has made all reasonable efforts to ascertain the rights status of all works reproduced on this website. Any corrections should be sent to the attention of [name/digital rights administrator]." Or: "All reasonable efforts have been made to identify and contact copyright holders but in some cases these could not be traced. If you hold or administer rights to works posted here, please contact us. Any errors or omissions will be corrected." Such disclaimers are becoming more common and at a minimum are useful in demonstrating the publisher's good faith. If a rights holder should come forward and object to the use, prompt removal of the image may be sufficient remedy. In other words, in crafting a policy for the use of works where it's not possible to obtain permission, an institution, in consultation with counsel, should to consider several things: ~Develop guidelines for doing a proper fair-use assessment in individual cases and develop a protocol so that all staff who are responsible for rights clearance know how to make a good assessment (and when to consult counsel); ~Develop guidelines for what constitutes a sufficient search for a rights holder and put in place a program to ensure that staff understand it; ~Develop a protocol for rights search documentation and document retention; ~Determine its comfort zone with respect to use of works that fall into a "gray area" such as OWs; ~Decide whether its own internal policy with respect to the use of such works is also going to be its policy when others outside the institution make use of a work whose rights are controlled or administered by the institution; ~Assess the status of the works you want to use. If the rights owner is known to be active in asserting rights but for some reason has not been answering your request letters, you should not consider that work to be "in limbo"; ~Don't be guided by your own convenience: your policy should not be driven by a desire to avoid paying legitimate rights fees, or a desire to publish fast, without waiting for a slow responder to write back (perhaps from a distant country or an understaffed museum), or a desire to avoid masses of rights-clearance paperwork. In these notes, I don't mean to encourage users not to clear rights. I'm only suggesting ways to address the small group of works that are truly in limbo. Regards, Eve Sinaiko
