American Society of Magazine Editors

MPA Files Comments on Copyright Office Orphan Works Notice of Inquiry

February 25, 2013

In October, the Copyright Office issued a Notice of Inquiry (NOI) relating to the subject of orphan works – an original work of authorship for which a good faith prospective user cannot readily identify and/or locate the copyright owner in a situation where permission for use is necessary.  Though the Copyright Office has looked at the issue before, the latest NOI asks respondents for information on two questions:  1) what is the state of play on “one off” uses of orphan works?  2) What are the issues raised by orphan works in the context of mass digitization (i.e., the Google Books project)?

Representing both creators and users of copyrighted works, MPA offered support for the Copyright Office’s previous efforts on orphan works, and highlighted some important considerations regarding the occasional use of orphan works.  With regard to orphan works in the context of mass digitization, MPA expressed concern that the legitimate social and policy imperatives associated with “mass digitization” projects could be used as a potential justification for disregarding fair use principles in the orphan work context.  MPA encouraged the Copyright Office to continue to be mindful of the distinction between fair use and orphan works, and suggested that the two questions the NOI contemplates be bifurcated into separate notices of inquiry.