On the Issue of Orphaned Works

In copyright, one issue that is extremely frustrating and inconvenient for most law-abiding citizens to deal with is the concept of orphan works. According to Wikipedia, “An orphan work is a copyright protected work for which rightholders are positively indeterminate or uncontactable.” This seems like it should not be an issue at all, but due to the fact that copyright is formed at creation rather than at filing, this can cause many issues trying to track the original owner of the copyright if it is not specified at creation. This is especially a huge issue with the booming popularity of the Internet in the past 10 or so years. With so many people finding works on the Internet that they want to use in their projects, it becomes very inconvenient and disheartening when the only thing holding people back from using these works in their projects is the inability to contact the holder of the copyright.

As of right now, there is no legislation in the United States that addresses the issue of orphaned works. According to the United States government website, the United States is currently aware of the issues that orphaned works bring rise to. The legislators have had meetings where they have discussed the issues at hand on March 10-11, and have until April 14 to submit their comments on what they feel they should do next. As with anything that happens in Washington, I’m sure it will be quite some time before we see any meaningful progress anytime soon, but the fact they have at least acknowledged the issue of orphaned works is definitely a step in the right direction.

Based on all the inconveniences that come with orphaned works, and that fact that the majority of orphaned works are most likely to not be enforced (does not mean they won’t be enforced, hence the issue that most law-abiding citizens have when trying to work with orphaned works), you would probably think to yourself “Gee, orphaned works sure sound like a hassle, why haven’t we done anything about them sooner?” Other countries have already implemented or are in the process of implementing legislation that deals with the issue of orphaned works, yet the United States legislators have just recognized it as an issue on February 10th of this year (studies have been done into orphaned works in the past, but this is the first time that the United States is pursuing a legislative solution to the issue)! The reason for this is that people felt that the existing copyright laws were sufficient enough to deal with orphaned works, and cases where copyright law didn’t specify, they felt there were non-legislative work arounds to those issues. If you ask me, that’s a load of bull (I’ll keep this post PG rated). These non-legislative solutions that were mentioned were essentially to do a risk-benefit analysis, and essentially determine if you felt the benefits outweighed the risks of potential copyright infringement. Last time I checked, law-abiding citizens aren’t exactly keen to the idea of walking a tightrope when it comes to whether or not the law is being broken or not.

On the other hand, there are those who are aware of the fact that orphaned works are an issue that our copyright law does not cover (including me), and simple non-legislative solutions are not sufficient enough to deal with the problem at hand. The one solution that seems to be popular in most countries that have implemented a solution to orphaned works is the idea of “reasonable effort”. The premise behind the idea is if the person using the copyrighted work that is orphaned can prove that they made a legitimate effort to locate the owner of the copyright, then they will be protected by law from any allegations of copyright infringement. I feel that this is a good solution to the issue at hand, and essentially addresses all the issues that people have when trying to use orphaned works in their work. Some people may say that determining what is “reasonable” is to vague, but if we’re going to go down that road we may as well rewrite the thousands of laws that are already in existence that have vague terms, including some already existing copyright law (Fair Use exception sound familiar?). Others will also say that making a reasonable effort to search for the owner of the copyright can be time consuming, but isn’t everything revolving intellectual property already extremely time consuming (patents come to mind…)?

While the solution may not be perfect, I feel that it is way better than doing nothing about the issue at all (which is what the United States has been doing for quite some time now). I’m hoping that legislation regarding orphaned works will get passed soon, but seeing as gorillas could write hamlet faster than our government passes useful legislation, it may be some time until we see any progress.

Works Cited

“U.S. Copyright Office – Orphan Works and Mass Digitization.” U.S. Copyright Office – Orphan Works and Mass Digitization. N.p., n.d. Web. 19 Mar. 2014.

“Orphaned Work.” Wikipedia. Wikimedia Foundation, 01 Jan. 2014. Web. 19 Mar. 2014.

Orphan Works: Analysis and Proposal. Rep. Duke Law School Center for the Study of the Public Domain, Mar. 2005. Web. 19 Mar. 2014.

Report on Orphan Works. Rep. United States Copyright Office, Jan. 2006. Web. 19 Mar. 2014.

Joseph

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