What Constitutes a Diligent Search Under Present and Proposed Orphan Work Regimes?
Berkeley Digital Library Copyright Project, White Paper No. 5
28 Pages Posted: 8 Mar 2013 Last revised: 21 Jul 2017
Date Written: March 5, 2013
Numerous legal regimes or proposals have been devised to address the problem of whether or under what circumstances in-copyright works can be made available if the works are “orphans,” because their rights holders are unknown or cannot be found. A common feature is a requirement that a prospective user make a diligent search for the rights holder. This White Paper complements an earlier one on orphan work searches which considered who would be expected to conduct a search. The present White Paper focuses instead on different conceptions about what a diligent search might consist of. It does not offer a normative assessment of what “diligent search” should mean. Rather, it intends to provide information about various approaches to this concept to aid in reasoned conversations about this concept.
Keywords: Fair Use, Copyright, Orphan Works, Diligent Search, Extended Collective Licensing, ECL, Copyright Office
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