Orphan Works

“Orphan Works” are copyrighted works — books, music, records, films, etc — whose owner cannot be located. Works can become “orphaned” for a number of reasons: the owner did not register the work, the owner sold rights in the work and did not register the transfer, the owner died and his heirs cannot be found … the list goes on. Very often, orphan works become obscure no matter how valuable the material contained in them may be. No future artist is willing to use the orphan work for fear that he will have to pay a huge amount of money in damages if the owner emerges.

How Does it Affect Music?

The problem of orphan works affects music just as much as any other kind of work. For example, in comments filed with the Copyright Office, one commenter (see CAA's comments to U.S. Copyright Office) narrates how he was unable to include certain songs in his book on folk and children’s songs because he could not locate the copyright owners. As a result, his book does not have an original Native American song, a Hanukka song or a Spanish song. Similarly, a sound artist narrates how she samples from old records or old radio shows from the 1940s. She explains how it is almost impossible to find the copyright owners of these songs.

The Copyright Office Study

Efforts to solve the orphan works problem have been underway since 2005. On January 26, 2005 the Copyright Office invited the public to comment on the orphan works problem. 850 comments and reply comments were filed. In their filings, Public Knowledge and library groups proposed that a user should be able to use an orphan work if she conducts a diligent search for the owner and fails to locate him. Whether the user’s search was diligent would be determined on a case-by-case basis. Guidelines to aid users in conducting the search, also called “best practices”, would be developed by user and owner groups. In the unlikely event that the owner was to emerge after the use had started, the user would pay him a fee capped at a maximum amount, say $200. However, the use could not be stopped by an injunction. Also, unlike in a regular copyright lawsuit, a user of the orphan works provisions would not have to pay attorney’s fees or litigation costs of the owner. These groups suggested that this approach would eliminate the fear users currently face of exposure to huge monetary damages even when they make culturally significant uses. At the same time, assuring compensation to an emerging owner would respect his rights in the work.

In January 2006, the Copyright Office issued its report on orphan works. The report found that the problem of orphan works was real and proposed a solution similar to that sought by Public Knowledge and the libraries, differing only in how the compensation to the owner would be limited. In contrast to the cap on damages, the Copyright Office recommended that users should pay a reasonable compensation to the emerging owner. This compensation would replicate a market place transaction between the parties if a license were sought before the use started. Groups of copyright holders, mainly photographers, illustrators, graphic artists, and textile designers, opposed both specific aspects of Public Knowledge’s proposals and the Copyright Office recommendations and any attempts to permit use without consent. Some of these groups continue to oppose any orphan works solution.

Legislative Efforts to Solve the Orphan Works Problem

On May 21, 2006, Rep. Lamar Smith, Chairman of the House Subcommittee on Courts, the Internet and Intellectual Property introduced H.R. 5439, the Orphan Works Act of 2006. The bill was based on the Copyright Office report and was an improvement in some respects. Although the Subcommittee passed this bill, the full House did not vote on it. Also, there was no Senate counterpart to this bill. As a result orphan works legislation was not passed in the 109th Congress.

At the behest of public interest groups, the 110th Congress renewed efforts to introduce orphan works legislation. Both the House Subcommittee on Courts, the Internet and Intellectual Property and the Senate Committee on the Judiciary introduced orphan works legislation in April 2008.

Concerns with the 2008 bills

Both 2008 bills particularly the House version, would impose more stringent search requirements and compensation obligations on users as compared to the 2006 bill. Public interest groups have expressed concern that these obligations may be too burdensome and would discourage many valuable uses of orphan works.

• Onerous Search Requirements

The diligent search provisions of the bills would require all users to expend resources in searching for the owner without taking into account the differences in resources between different kinds of users. For example, the bills do not consider the fact that an independent label or an unsigned artist might not have the same resources as a major label to search for the owner of a sample to include in a new album.

• Submit Search Summary to the Copyright Office

The House would also require users to document their search, summarize it, and submit a copy of it to an archive to be maintained by the Copyright Office. The Copyright Office has said that it would have to impose a fee on such submissions, equivalent to fees currently charged for registration ($45). In addition, submitting an official document to the Copyright Office is likely bring with it the costly eyes of an attorney.

• The Registration Premium

The House bill adds a premium onto the reasonable compensation that a user may have to pay when an owner emerges, simply because the owner had registered his work. The provision does not require the owner to keep the registration up-to-date to benefit from this requirement. This provision in no way incentivizes an owner to maintain current copyright registration information, which would prevent a work from being orphaned in the first place.

The language of both bills is not final yet. Stakeholders and Congressional staff are involved in the process of working out language that reflects the concerns of all involved. We at Public Knowledge hope that the process will be fruitful and that a good orphan works legislation will pass this year.