COPYCENSE

This Report addresses the issue of “orphan works,” a term used to describe the situation where the owner of a copyrighted work cannot be identified and located by someone who wishes to make use of the work in a manner that requires permission of the copyright owner. Even where the user has made a reasonably diligent effort to find the owner, if the owner is not found, the user faces uncertainty – she cannot determine whether or under what conditions the owner would permit use. … Concerns have been raised that in such a situation, a productive and beneficial use of the work is forestalled – not because the copyright owner has asserted his exclusive rights in the work, or because the user and owner cannot agree on the terms of a license – but merely because the user cannot locate the owner. Many users of copyrighted works have indicated that the risk of liability for copyright infringement, however remote, is enough to prompt them not to make use of the work. Such an outcome is not in the public interest, particularly where the copyright owner is not locatable because he no longer exists or otherwise does not care to restrain the use of his work.

The Copyright Office has long shared these concerns, and … was pleased that on January 5, 2005 Senators Orrin Hatch and Patrick Leahy asked the Register of Copyrights to study the orphan works issue in detail, and to provide a report with her recommendations. Also in January 2005, Representatives Lamar Smith and Howard Berman expressed interest in the issue and supported the undertaking of this study.

Our conclusions are:

• The orphan works problem is real.
• The orphan works problem is elusive to quantify and describe comprehensively.
• Some orphan works situations may be addressed by existing copyright law, but many are not.
• Legislation is necessary to provide a meaningful solution to the orphan works problem as we know it today.

We recommend that the orphan works issue be addressed by an amendment to the Copyright Act’s remedies section. The specific language we recommend is provided at the end of this Report.

U.S. Copyright Office. Report on Orphan Works. January 2006.

Updates:

The Patry Copyright Blog. Copyright Office Orphan Works Report. Feb. 6, 2006.

Public Knowledge. The Copyright Office’s way to Solve Orphan Works. Feb. 1, 2006.

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.