The Copyright Office’s way to Solve Orphan Works

February 1, 2006

PK released a press release on the orphan works issue this afternoon.

The office set out to accomplish four goals: 1. to encourage owners to make themselves known and users to make all reasonable efforts to find owners of works they want to use; 2. when owners are unlocatable, users should be permitted to use the work, with limited remedies for the owner if he surfaces after the use commences; 3. legal provisions should work independently of the rest of copyright law, maintaining existing exemptions and limitations; and 4. a solution must be least burdensome to copyright owners, users, and the federal government.

PK believes that the Copyright Office's recommendation properly requires of a user of an orphan work a good-faith and reasonably diligent search. The guidelines for this reasonable search are balanced and attentive to the concerns raised by a number of the groups during last year's discussions. The recommendation properly sets the scope of the regulation to include both published and unpublished works, alike, and does not make separate distinctions based on the age of the work. We agree that orphan works users should also be required to provide up-to-date attribution information about work's owner and author. The proposal correctly dismisses the use of rainy-day escrow accounts and an orphan work-specific arbitration system, in the unlikely case that an orphan owner resurfaces.

With regard to the Copyright Office's recommendation, the problem at the core of the orphan works issue still remains: if the owner of a work can legitimately not be found, how do you properly reward/incentivize a user of the work for reviving and disseminating it?

Put another way, what is the appropriate legal protection for a user of a work who has diligently, and in good faith, searched for the owner of the work? Is protection against statutory damages enough?

The concern with the Copyright Office's recommendation is that “reasonable compensation” based on what a willing buyer and reasonable willing seller would have agreed to at the time of use, “based predominantly by reference to evidence of comparable marketplace transactions,” does not adequately address the issue of orphan works. The whole problem is that there is no “comparable marketplace transaction” for an orphan works situation because there was no reasonable willing seller in the first place. To allow a court to decide what would have been reasonable retroactively, we think, creates too high of a hurdle for potential users of an orphan work, and will ensure that the orphans stay locked away in the orphanage.

That's why we proposed a cap [PDF] on the amount that a user of an orphaned work would have to pay to the owner. This gives the user of the work a tangible amount of certainty of what he or she would have to pay if the owner surfaced. Without this kind of cap, we don't believe any one would use an orphan work–it's just too risky.