Thursday, September 21, 2023

Guest Post: Is the Copyright Office Inflating the Need For Orphan Works Legislation?


By Talia Kosh, Esq.

The issues and concerns surrounding orphan works emerged from the  Copyright Act of 1976 when copyright protection became automatic and  registration became optional. The Copyright Office has noted in its most recent Report on “Orphan Works and Mass Digitization” that the inability to locate the owners of these copyrighted but not registered works is “perhaps the single greatest impediment to creating new works.” But is it?  Since it appears the Copyright Office’s position is to swerve users away from pursuing fair use options, the accuracy of this is unclear without closer examination of attempted fair uses in the face of a failed search for the owner of creative works.

The Devil, of course, is in the details. The question that will always be relevant in any conversation on copyright is how to retain the ability to preserve important works while minimizing the loss of income from creative works.

In short, what the Copyright Office suggests is proposed legislation similar to the failed Shawn Bentley Orphan Works Act of 2008; where anyone would be able to use an orphaned work after a diligent search and penalties would be limited to a reasonable licensing fee, making the risk for using such works calculable.

The reason this approach has failed twice before is due to strong opposition from a number of groups, including artists and illustrators, such as Brad Holland, who believes that such legislation would effectively orphanize massive amounts of creative works in favor of larger corporations who wish to monetize their mass digitization efforts. But as the Copyright Office notes, this proposed legislation would not be applicable to mass digitization efforts. Whether Mr. Holland’s fears are well-founded would require the testing some sort of legislation.

Such legislative proposals do potentially offer another avenue for artists  to receive some form of compensation where they may not otherwise see any. Artists who failed to register their works within 3 months of publication wouldn’t have to prove lost profits in a court of law and would receive a reasonable licensing fee for their work. This fee would, theoretically, approximate the true market value of the work. If an owner were to emerge, his legal ownership of the copyright in his work would remain unchanged.

But these louder conversations are obscuring an even more interesting footnote. The Library Copyright Alliance stated in their comments to the Copyright Office’s Notice of Inquiry Concerning Orphan Works and Mass Digitization, “There is less agreement now than six years ago both on the existence of a problem and the best approach to solve it.” Now, this is a curious thing-that there is actually less consensus on whether an orphan works problem even exists. The Library Copyright Alliance also noted that orphan works legislation “would be of little benefit to libraries because it is a mechanism for isolated uses of orphan works.”

In his 2011 article, “The Shrinking Orphan Works Problem,” Joseph Esposito finds that “The number of orphan works is shrinking because books that could have been orphans are being researched and their copyright owners identified or they are being found to be in the public domain.” The irony is that our increasingly-digitized world is making it easier to find authors and owners of works. And because of these digitization projects performed by groups like Google and the HathiTrust, more and more groups, including publishers, have stronger incentive to devote the time to these searches and their own digitization efforts.

For digitization of special collections, or mass collections, the Copyright Office instead suggests its proposed extended collective licensing (ECL) framework, which would also be of little use to Libraries, such as with the publication of unpublished works or ephemera. Additionally, the Office itself believes that an ECL for orphan works “would end up ultimately as a system to collect fees, but with no one to distribute them to.” Libraries have found their answer in the Fair Use doctrine which they find more tailored to their need to digitize special collections. Their Code of Best Practices in Fair Use along with the HathiTrust litigation, have helped delineate for libraries which orphan works projects will subject them to greater risk of infringement litigation where a “reasonably diligent search” standard is not viable for mass digitization of special collections.

Waiving the Fair Use Flag

The report acknowledges that fair use jurisprudence has moved in a direction that favors the use of orphan works. But the Copyright Office does not want to evoke any confidence in fair uses, noting that it is “a less concrete foundation for the beneficial use of orphan works than legislation, and is always subject to change.” The Copyright Office’s position also minimizes the actual effect codes of best practices in fair use have had on various industries, such as libraries, archivists, educators and documentary filmmakers. Libraries are the first in line to disagree with the Copyright Office’s assessment, claiming the Office is ignoring the fact that fair use is a better remedy than anything the Copyright Office has proposed for preserving our cultural heritage, and the only thing close to keeping up with our rapidly-changing digital landscape.

Many say there are other more realistic measures the Copyright Office should be taking that don’t require legislation that draws so much opposition-like better record keeping, making its records more accessible online, offering search assistance to users on the Internet, allowing digital recordation works without registration, updating the Catalog of Copyright Entries to include a full registration record, including assignments and other recorded documents so it can finally be used for searches involving the ownership of rights.

What can artists do to avoid the orphan works dilemma if they don’t wish to register all of their works on a regular basis? The first line of defense is keeping your metadata and EXIF data up to date with some way to contact you, though this isn’t foolproof. Opt in to Google’s enhanced image search and use descriptive file names, or utilize other licensing systems, such as that of Creative Commons. Or, even better, register your works with the Copyright Office. It’s easy, cheap, and you’ll be contributing to the record of our cultural heritage.


Talia Kosh holds a J.D. from Loyola University New Orleans College of Law and an LLM. in International Law from American University. Talia practices law in Santa Fe with The Bennett Law Group and is Founder and President of New Mexico Lawyers for the Arts, counseling and educating artists on a wide variety of legal issues. Talia also serves on several nonprofit boards, as well as the Governor’s Counsel of Film and Media Industries, and as past Chair  and board member of the Intellectual Property Section of the New Mexico Bar . Talia also teaches at Santa Fe Community College and University of New Mexico’s Continuing Education Program. She received the Santa Fe Mayor’s Award for Excellence in the Arts in 2014. The views expressed by Talia are hers and not those of any entity and/or organization.

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Comments: 1

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  • Junk

    You made some good points but your comment ” It’s easy, cheap, and you’ll be contributing to the record of our cultural heritage.” is way off the mark as it relates to individual creators who would have to copyright their works.

    I represent an creator who has 8,000 creative works. At $35 a registration, the cost is $280,000. Getting documentation of first publication will take hours of research traveling to libraries to go through microfiche to find long bankrupt publications. The cost to hire someone to do this could run in the thousands too. If I register via the yearly publication fee, the process of filling out each form takes about an hour and costs $85 x 28 years = $2295 plus the labor costs of about $500 but doesn’t provide as much protection against works getting orphaned due to the mass grouping.

    I can only imagine what it would cost a photographer who might have hundreds of thousands of images to register.

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