The United States Copyright Office recently issued a broad
notice of inquiry in the Federal Register, seeking comments from
the public "regarding the current state of play for orphan
works." An orphan work is an original work of
authorship, such as a photograph, for which a copyright owner
cannot be located. The issue of orphan works has been a top
priority of the Copyright Office for several years, and the
Copyright Office plans to advise Congress on legislation to address
orphan works in the near future.
In 1976, Congress eliminated the requirement that works be
registered with the Copyright Office prior to receiving the
protections of the copyright laws. The 1976 legislation
effectively did away with any central repository for information
about a work's author or owner. Despite relaxing the
requirements imposed upon authors and copyright owners to obtain
copyright protection, under current law, those who use an orphan
work remain subject to civil penalties, including damages
and—if the work is registered—attorneys'
fees.
The current situation arguably inhibits the productive use of many
orphan works, not because an owner is asserting rights under the
Copyright Act, but simply because the owner cannot be located or
identified. Good faith users seeking to reproduce, display,
or incorporate into their work an orphan work may be discouraged by
copyright law and their inability to locate and obtain a license
from the rights holder. The Copyright Office has stated that
"[t]his outcome is difficult if not impossible to reconcile
with the objectives of the copyright system and may unduly restrict
access to millions of works that might otherwise be available to
the public." However, many authors oppose orphan works
legislation because recent proposals permit the unauthorized and
unlimited use of copyrighted material, provided the user has
attempted to locate the rights holder to the satisfaction of
legislators or administrators. This approach is seen by some
as a concession of rights without the consent of the rights
holder.
The issue of orphan works is not new. In 2006, the Copyright
Office prepared a report to Congress in which it recommended
limiting the remedies available to authors and owners of orphan
works if they later appear and challenge the use of their
works. The 2006 report to Congress also suggested a
requirement that users of orphan works perform a "reasonably
diligent search" for the owner of the work.
Shortly after the 2006 report, the United States Senate passed the
Shawn Bentley Orphan Works Act of 2008, which incorporated many of
the Copyright Office's suggestions. The Orphan Works Act
of 2008 fleshed out the concept of a "reasonably diligent
search," and it made clear that the federal courts would be
the ultimate arbiters of orphan work disputes. The Orphan
Works Act was introduced in the House of Representatives, but it
failed to receive a vote prior to the lower chamber adjourning for
the year.
Orphan works are once again at the forefront of copyright law, both
domestically and internationally. In recent months, the
European Union adopted a directive on orphan works that resembles
the 2008 proposed legislation in several ways. The EU
directive appears to have triggered renewed interest in domestic
legislation regarding orphan works as well. The Copyright
Office's recent notice of general inquiry, issued on Monday,
October 22, 2012, makes clear that additional input on the topic of
orphan works likely will be solicited through subsequent
notices. The current notice specifically seeks input on how
the legal and business environments have changed since the Office
made its 2006 report to Congress, and it contains an open call for
proposed resolutions to the orphan works issue, whether
legislative, regulatory, or voluntary in nature. The comment
period closes at 5:00 p.m. EST on January 4, 2013.
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