What happens when a copyright owner cannot be located?

When a good faith user wants to license a copyrighted work but cannot locate the owner, the work is considered to be an “orphan work.”  While there are provisions in the Copyright Act that would allow for use of an orphan work under some circumstances (such as §107 (fair use), §108(h) (use by libraries during the last twenty years of the copyright term), and §115(b) (statutory licenses for musical works, discussed in my previous post here), these existing provisions do not address the majority of orphan work situations.  The result is that good faith users are unable to legally license millions of copyrighted works. This unfortunate result is antithetical to the purpose of copyright law - which should be to promote the progress of science and the arts.

The orphan works problem is a by-product of a series of changes in the copyright laws that eliminated previous requirements that copyright owners publish, register, renew, and attach copyright notices to their works in order to receive copyright protection.  One of the most common misconceptions I frequently hear from clients is that the law requires affirmative actions by the owner (such as registration or affixing copyright notices) in order to protect a copyright – but in fact, the only thing that an owner must do to own a copyright is to create something original, fixed in a tangible medium.  There are additional benefits conferred to a copyright owner upon timely registration, such as the potential recovery of statutory damages and attorneys’ fees in an infringement suit.  However, registration isn’t required in order for a copyright to be valid.   

The problem that arises when copyright owners aren’t required to register copyrights or to attach notice of their claim to ownership is that many copyright owners go missing.  According to the Copyright Office, this orphan works problem is especially pervasive for photographs, but it also arises frequently with other types of works, such as books and musical works.

Previous attempts at legislation attempted to strike a balance between the rights of copyright holders and good faith users by allowing use of an orphan work as long as the user made a “reasonably diligent effort” to locate the copyright owner.  In the event the owner came forward at a later date, the remedies would be limited to payment of “reasonable compensation” for use of the work.  The proposed legislation was ultimately unsuccessful, so Congress at the early proposal stages did not specify what would constitute a “diligent effort” to locate the owner (i.e., what technology and/or search practices should be used); or how “reasonable compensation” would be determined (i.e., whether by mutual agreement, or a license fee determined by a court or by statute). 

The Copyright Office is currently accepting comments from interested parties regarding the problem of orphan works, in preparation for a recommendation to Congress for proposed legislation.   Comments may be submitted until March 6, 2013.  

The above advertisement was originally published in the New York Clipper in 1906.