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Orphan works policy says: after a fruitless but diligent search for the owner, a user may use a copyrighted work without fear of statutory damages as long as the owner is paid if he returns.
“Orphan Works” are copyrighted works — books, music, records, films, etc. — whose owner cannot be located. Works can become “orphaned” for a number of reasons: the owner did not register the work, the owner sold rights in the work and did not register the transfer, the owner died and his heirs cannot be found. Presently, there are millions of such works in existence, all of which are unavailable to the DJs, filmmakers, collage artists, libraries, educational institutions and other creative professionals and institutions who would like to pay for the ability to display and use them. Why not just use them? Because if someone uses an orphan work and the copyright owner does emerge, that user can be found liable for infringement which carries legal damages of up to $150,000 per work.
Here are some examples of scenarios where artists and institutions are unable to use orphan works:
A DJ wants to sample an old folk record that he finds at a flea market but can’t find the copyright holder because the label that released the record is now defunct.
A library wants to make historical photographs or artwork available for viewing online but cannot find the original authors or copyright owners of those works.
A documentary filmmaker wishes to use snapshots of a documentary subject in her film but can find no record of who took the snapshots.
Clearly, there are a number of different scenarios in which greater access to orphan works would benefit both artists and the general public. So, what’s the solution? Public Knowledge believes that orphan works-specific legislation is needed that provides greater access to these works without eroding the existing rights of content creators. To that end, we believe that orphan works legislation should:
Ensure that anyone who wishes to use an orphan work put diligent effort into a qualifying search for the owner of the copyright
If the search yields no results, the user should be allowed to use the orphan work without fear of statutory damages
If the copyright owner emerges, the user must negotiate with that owner in good faith to determine reasonable compensation for the use
If the user does not complete a diligent search for the copyright owner and uses the work anyway, that user would be liable for the full damages of up to $150,000 per work, as is the case under the current system
