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

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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.

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