Save the Orphan (Works)

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Copyright law is designed to encourage the production ofcreative works by giving the creator of a work the exclusive right(subject to certain limitations) to decide who may make copies ofthe work and at what price. Musicians, writers, photographers, andother creative professionals rely to a greater or lesser degree oncopyright to earn a living.

Yet most copyrighted works have a short commercial life. Only atiny fraction of books, songs, movies, and software are sosuccessful that they enjoy multiple printings and continue to sellwell for years after their release. The rest generate revenue foronly a few years before they fall into the obscurity of publishers'back catalogs.

But many works continue to have cultural and historical valuelong after they cease to be commercially valuable. There are vastarchives of out-of-print works that could be used by historians,artists, and others to learn about the past and to re-use increative new ways.

Unfortunately, two recent changes in copyright law have severelyhampered our ability to make productive use of older works. First,Congress has repeatedly extended the length of copyright terms. In1998, Congress extended the term of most extant copyrights to thelife of the author plus 70 years. As a result, the normal processwhereby older works fall into the public domain has been stopped;today many works created more than 80 years ago are still under copyright.

Second, Congress has eliminated what are called copyright"formalities." Until the 1970s, authors needed to register theirworks with the copyright office, affix a copyright notice to everycopy they printed, and renew their copyrights after a fixed periodof time. These requirements were a small price to pay for theexclusivity of copyright protection, and they ensured that anyonecould determine with reasonable certainty whether a given work wasunder copyright and who the copyright holder was. Unfortunately,between 1976 and 1992, Congress phased out these requirements.Federal copyright protection is now granted automatically whencontent is fixed in a tangible medium of expression, and nocopyright notice or renewal is required to keep them.

The result has been a growing "orphan works" problem-millions ofworks that cannot be copied by anyone because their copyrightholders cannot be found. Ironically, the problem has arisen just asthe Internet and other digital technologies could have given olderworks a second lease on life. For example, Google is now scanninghundreds of thousands of out-of-copyright works for the public toaccess online. Unfortunately, the fear of copyright liabilityprevents any such use of orphan books whose writers and publishershave long since passed from the scene. Any business that begancopying works-even those that have long been out of print-withoutfirst tracking down the copyright holder could face enormousliability.

The best way to solve the problem would be to reverse the badpolicies that caused the problem in the first place: shortencopyright terms and reinstate copyright formalities. But the UnitedStates is prevented from introducing formalities by a bar on themin the Berne Convention, and shortening copyrightterms is likely to be a political nonstarter for the foreseeablefuture.

An alternative is to create new protections for those whoconduct a good-faith search for the owner of a copyrighted work butcome up short. One good proposal comes from Jerry Brito of GeorgeMason University's Mercatus Center and Bridget Dooling, formereditor in chief of the Federal Circuit Bar Journal, who havesuggested the creation of a new "orphan works"defense to charges of copyright infringement.

Under their proposal, someone wanting to use an orphan workwould be required to conduct a search for the copyright holder. Ifhe or she found the copyright holder, they would need to negotiatea license, as under current copyright law. If the copyright holdercould not be found, the new user would be permitted to use the workwithout fear of crippling liability. If a copyright holdersubsequently emerged, the defendant could assert an "orphan works"defense and have an opportunity to prove that he or she hadconducted a "diligent search" for the copyright holder.

The courts would conduct a fact-specific inquiry to determine ifa diligent search had been conducted, guided by a non-exhaustivelist of statutorily defined factors analogous to copyright's fourfair use factors. A copyright holder who subsequently emerged wouldnot be able to claim the draconian "statutory damages" -as much as $150,000 perinfringing use-that are normally available to aggrieved copyrightholders. Instead, the copyright holder would be entitled toroyalties set by statute for any unsold copies of the work.

This proposal would facilitate greater use of copyrighted worksthat are now sitting idle on the shelves of the nation's libraries.It would have the additional virtue of encouraging copyrightholders to voluntarily observe the traditional copyrightformalities of marking their works and registering them indatabases maintained by the Copyright Office or private parties.These steps would make it easier to find them, which in turn wouldmake it harder for people to assert the orphan works defense. Theresult could be the de facto reintroduction of formalities in amore flexible, decentralized form.

Orphan works legislation based on recommendations by the Copyright Office hasbeen introduced in both the House and the Senate. It is similar to the Brito-Doolingproposal with two important differences. First, it offers onlylimitations on liability-not an affirmative defense-for copyingorphan works. Second, it requires the filing of a notice with thecopyright office for each proposed use of an orphan work.

The Brito-Dooling approach is superior in both respects. Merelyreducing liability may leave in place a significant chilling effecton the use of orphan works. And if the user of an orphan work canprove performance of a good-faith search for the copyright holder,it seems unfair to impose any damages for works that have alreadybeen sold.

A particular weakness of the Copyright Office proposal is thepaperwork burden on users of copyrighted works, whose creativity iseasily chilled. If a filing with the copyright office is requiredof them, prudent creators seeking to enjoy confidence in theapplication of the orphan works defense to themselves may feel theneed to hire lawyers to help them prepare the filings. Given thatthe purpose of orphan works reform is to make orphaned works widelyavailable for re-use, imposing unnecessary paperwork iscounterproductive. This is doubly true when we consider that inmost cases, no copyright holder will ever come forward.

Nevertheless, the legislation would be an important step towardmitigating the orphan works problem. There is currently a greatdeal of value locked up in the nation's libraries and archives, andthe proposal would allow people to begin unlocking it.