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News

A Big Step Forward on "Orphan Works"

(February 9, 2006) - Last week, the U.S. Copyright Office released a Report on Orphan Works that takes a major step toward solving a major problem.

The problem was created over the past 30 years as copyright law changed from an "opt-in" to an "opt-out" system.1 As requirements for notice, registration, and renewal of copyright were eliminated, virtually every writing or other work "fixed in any tangible medium of expression" became immediately copyright-protected at the time of its creation. But in many cases, the creator didn't plan to market the work commercially, or otherwise control its use, and didn't intend for copyright protection to apply.

Because there is no central registry (one can still register a work at the Copyright Office, but it isn't required), it is often difficult, if not impossible, to find the owners of many works that automatically have copyright status as a result of the "opt-out" system; hence, they are "orphans." Yet many are historically interesting; others are artistically worthy; and some, like family photos taken by professional studios, are simply of personal value. Photo labs won't reproduce them for fear of copyright liability; archivists and librarians fear to copy them or post them online; screenwriters and stage directors are wary of mining them for source material.

Adding to the dilemma are today's extremely long copyright terms - life of the author plus 70 years, or 95 years for corporations.2 The result is that thousands if not millions of works dating back to the 1920s or even earlier are stuck in legal limbo, often hidden from public view.

Librarians, scholars, and cyber-advocates have been increasingly vocal about the problem, and last year Senators Patrick Leahy and Orrin Hatch responded by asking the Copyright Office to undertake a formal study of orphan works. The Office received more than 850 written comments and held three days of roundtable discussions, as well as many informal meetings. The result is a comprehensive 127-page report which concludes with a proposal for legislation that would greatly reduce - if not entirely eliminate - the perils of using orphan works.3

The proposal recognizes that the specter of tough penalties for copyright infringement inhibits publishers and others from making valuable use of orphan works. While rejecting arguments that after a certain period, or a conscientious search, orphan works should enter the public domain, the Office proposes limiting the remedies for infringement, so that those who make reasonable, but unsuccessful, efforts to find owners can reproduce or distribute orphan works without fear of incurring harsh penalties.

The recommended legislation starts with two conditions that must be met before taking advantage of the proposed limitation on copyright remedies. The first is that the person making use of the work ("the infringer") perform "a good faith, reasonably diligent search to locate the owner." The second is that, where the owner can't be found, the infringer still give attribution - that is, credit the author and owner (who are not always the same person) - "if possible and as appropriate under the circumstances."4

If these steps are taken, and then the owner does appear and make a claim, the infringer would not be liable for money damages - as long as the use of the orphan work is not for "commercial advantage," and is halted "expeditiously after receiving notice of the claim." If the use is commercial, then there is still no liability for damages - or, importantly, for the other side's attorney's fees - except for "reasonable compensation for the use of the infringed work." The Copyright Office suggests that in most cases, such "reasonable compensation" would be modest, and easily negotiated based on industry practice for works that aren't major commercial properties.5

The proposed new law would also limit a court's ability to issue injunctions. Where the orphan work is being used to create something new - that is, "a derivative work that recasts, transforms or adapts the infringed work" - then a court cannot stop the process, provided that the new user pays reasonable compensation and gives attribution. The idea here is that when, for example, a book that is an orphan work is used as the basis for a movie, "the user's reliance interest is greater, and he has contributed new expression to the public benefit, and thus is entitled to more freedom from injunctive relief."6

Where the original work isn't being adapted or transformed, a court may issue an injunction, but should take account of the "harm" it might cause to an innocent infringer - for example, the publisher of an anthology or an online archive who cannot find the owner of a particular article after a diligent search, and who then goes ahead, relying on the new law, to create the archive or anthology anyway.

The proposed law includes an important section noting that it doesn't affect the right to fair use, or any other "rights, limitations, or defenses to copyright infringement." In the body of the report, the Copyright Office points out that often, scholars and artists can copy parts or even all of an orphan work without permission of the owner, under the principles of fair use; or can borrow the ideas without violating copyright at all.7 Making it easier to use orphan works is like the right to fair use in that it expands access and promotes free expression; one system complements rather than restricts the other.

Without doubt, there will be much discussion and debate over the Copyright Office's proposal once it is introduced in Congress. If enacted, it will represent a big improvement over the current situation, and will enable many worthy orphans to find new homes.

Update, October 2008: After more than two years of legislative struggle and negotiation, the Senate passed the Shawn Bentley Orphan Works Act on September 26, 2008; but the House could not agree before Congress adjourned for the year. Public Knowledge reports that it remains optimistic that a compromise bill will pass in 2009. See Gigi Sohn's blog for details, at www.publicknowledge.org/node/1783

NOTES

1. Fore more on the opt-out system and the resulting problem of orphan works, see "New Lawsuit Spotlights Thousands of Copyright 'Orphans' That Should Be in the Public Domain," and Brief Amici Curiae of the Brennan Center et al. in Kahle v. Ashcroft.

2. For background on copyright term extension, see "The Progress of Science and Useful Arts": Why Copyright Today Threatens Intellectual Freedom, ch. 2.

3. See "Orphan Works," www.copyright.gov/orphan/, and Report on Orphan Works, www.copyright.gov/orphan/orphan-report-full.pdf.

4. Report on Orphan Works, p. 127.

5. Report on Orphan Works, p. 120.

6. Report on Orphan Works, p. 127.

7. See Will Fair Use Survive? Free Expression in the Age of Copyright Control, and, for background on the "idea/expression dichotomy" in copyright law, "The Progress of Science and Useful Arts": Why Copyright Today Threatens Intellectual Freedom, ch. 1.


The Free Expression Policy Project began in 2000 to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. The FEPP website is now hosted by the National Coalition Against Censorship. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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