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Background: The U.S. Copyright Office late Tues. released its report analyzing the status of so-called "orphan works," works whose author can't be located. The report is located here: http://www.copyright.gov/orphan/. Background on the issue is on our web site here: http://www.publicknowledge.org/issues/ow.
Public Knowledge President Gigi B. Sohn today praised the U.S. Copyright Office for its report on orphan works, but said one of the key recommendations to Congress still falls short.
"The report is a tremendous contribution to the field, with substantial analysis and strong recommendations on many aspects of the orphan works problem," Sohn said. "The Office conducted an open and comprehensive process, taking the time to analyze more than 800 comments and conducting roundtable discussions here and in California."
However, Sohn said that Public Knowledge disagrees with the recommendation of the report that users of orphan works be required to pay "reasonable compensation" to the owners of orphan works, should they appear after a diligent search.
"That approach keeps the orphans in the orphanage," Sohn said. The possibility of long negotiations or court action over compensation will still deter artists from using orphan works in their own creations, Sohn said, adding: "There is no way to determine the market value of a work that may have been out of circulation for decades. Creators of new works need more certainty."
Public Knowledge recommended to the Copyright Office in its March 25, 2005 comments that Congress put a "reasonable but low," cap of perhaps $200 per use that the creators of orphan works could claim as damages, and hopes Congress will adopt that approach. Public Knowledge said at the time that "damages available to resurfacing owners should be low enough so as not to discourage users from creating and disseminating new works that use orphan works."