November 28, 2012
On October 22 The United States Copyright Office posted a Notice of Inquiry seeking public commentary on the issue of “orphan works”, stating:
“The Office has long shared the concern with many in the copyright community that the uncertainty surrounding the ownership status of orphan works does not serve the objectives of the copyright system. For good faith users, orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace.” 77 FR 64555-01.
“Orphan works” are original works whose authorship is not readily identifiable to a good faith prospective user. Under current law, a user of an unidentified work may be liable for substantial damages, attorney fees and/or injunctive relief under 17 USC Chapter 5.
This is a second round of public comment on this issue. In 2006, the Copyright Office created a Report on Orphan Works (pdf) following a similar notice of inquiry issued in 2005 (see 70 FR 3739-01). The new notice cites recent developments including international legislation, the 2008 US bill, and Judge Chin’s rejection of the proposed Google settlement. The Google Books case brought wide attention to orphan works as Google faced a class-action lawsuit after it endeavored to digitize millions of out-of-print works. See The Authors Guild et. al. v. Google, Inc., 1:05CV08136 (S.D.N.Y., 2005), original complaint found at 2005 WL 2463899.
ADDITIONAL RESEARCH REFERENCES
For the 2008 draft legislation, try searching for “Orphan Work” in the CONG-BILLTXT110 on Westlaw Classic. There are 5 results.
History of the Phrase
The most cited source of the orphan works problem is extension of the copyright term over the last 30 years. For a detailed look at these developments, see Chapter 7 of Patry on Copyright. So, how long has the phrase been used? I ran the following search across all jurisdictions and content on WestlawNext:
copyright! & orphan /3 work book
It produces only 6 cases dating back to 2004, but over 500 secondary sources dating back to 1999 (it has not been addressed yet, however, in Black’s Law Dictionary). The earliest reference I find is a June 1993 report by the Library of Congress, which mentions “orphan films” in the context of film preservation efforts.
I’ll be tracking orphan works legislative and regulatory developments in WestClip with the following search:
Database: CONG-BILLTXT, FR
Query: “orphan works”
Full text searching of the Copyright Office reports is available in the FIP-CPYRTS database on Westlaw Classic. There are 28 results for the search, “orphan work.” For the US Copyright Office’s 2006 “Report on Orphan Works”, run the following search:
“report on orphan works” & da(1/2006)
Comments can be found on the Copyright Office website under the heading, Orphan Works. A 2006 Berkeley Technology Law Journal Article does a great job summarizing comments from the last inquiry. It also highlights a Carnegie Mellon study which was conducted to “determine the feasibility of acquiring copyright permission to digitize their collection.”
This study illustrates the orphan works problem libraries and archives face.10 Of the initial sample, 11% of the books (consisting of only copyrighted books) were taken out of the study as too complicated to even pursue because of third-party copyright ownership.11 On average, the researchers could not find 22% of the publishers of the remaining books in the sample.12 In general, the older the book was, the more difficult it was to find the copyright owner, and the more likely that the book was out of print and neither generating revenues nor aiding scholars.13 In the study, 36% of the publishers successfully located did not respond to multiple letters of inquiry.14 Approximately 79% of the books printed by these publishers were books that were already out of print.15 Even when the publishers responded, some were uncertain about what types of rights they had, and some did not even have records of having published the book.16
Olive Huang, U.S. Copyright Office Orphan Works Inquiry: Finding Homes for the Orphans (2006) 21 Berkeley Tech. L.J. 265, 267-68