The Status of Orphan Works Legislation
Last year, independent creators of copyright-protected works were threatened by legislation that came to be known as the Orphan Works Bill. The legislation was intended to further fulfill the constitutional purpose of the Copyright Law by making it lawful to publish copyright-protected works when the copyright owner could not be identified or located for the purpose of gaining permission to use those works. As the congressional session ended in 2006 the proposed Orphan Works legislation went the way of all bills that are not enacted, that is, it was off the table and would have to be introduced in another session of Congress, if its proponents wanted it to be enacted. We are now in the sixth month of the new congressional session, and the predicted re-introduction of the Orphan Works legislation has not happened even though everyone who follows developments in the copyright industries felt strongly that it would be re-introduced by now. The question whether the legislation will be re-introduced in this session of Congress goes unanswered. While many independent creators and their trade association wish for no re-introduction, I believe that Orphan Works legislation ought to be introduced but with some modifications based upon compromises that ought to be made by the stakeholders. My position is based upon my respect for the constitutional purpose of the Copyright Law. I believe that all independent creators ought to understand that purpose and work toward achieving it. Properly drafted Orphan Works legislation would serve the public interest as well as independent creators self-interests.

The Purpose of Copyright Law
The Constitution provides Congress with the power to enact the intellectual property (IP) laws for a specific reason: “to promote the progress of science and the useful arts.” Society is the beneficiary of the that purpose. Intellectual process drives all invention, discovery, and works of art. IP is the product of intellectual process, and by protecting the ownership of IP the motivation to create it is increased and the flow of that property to the public is increased.

IP can be valuable or worthless. Valuable IP has always been and will continue to be in demand. The Copyright Law fulfills its constitutional purpose by protecting the value of copyright through making IP theft illegal, and that provides a financial incentive to the creators of IP so that they will produce a stream of accomplishments in sciences and useful arts that will benefit society. The protection of copyright owners interests is a means not an end in itself of the Copyright Law. Understanding the difference between the means of Copyright Law and the constitutional purpose, which is the end in itself of the Copyright Law, is critical to dealing with the issue of Orphan Works. As mentioned at the start of this paper, the legislation was intended to further fulfill the constitutional purpose of the Copyright Law by making it lawful to publish copyright-protected works when the copyright owner could not be identified or located for the purpose of gaining permission to use those works. In other words, if a prospective user of IP could not identify or locate an owner of a copyright-protected work, it would be legal to use the desired work provided the prospective user adhered to certain legal standards. The question that begs to be answered is whether or not using those orphan works without the owners permission is reasonable. To address that question we have to recognize the tension between the constitutional purpose of our Copyright Law and the financial incentives that the Law provides to copyright owners. How do you make IP freely available and yet protect its value to the copyright owner? When copyright owners license their works the marketplace determines a value. When the copyright owner chooses not to license a work, the work is effectively valueless by choice of its owner. But when a copyright owner who once licensed a work into publication, thereby creating some pubic interest value, cannot be located to further license the work, should society lose the ongoing public interest value of that work? Those who supported the Orphan Works legislation say No and those who opposed it say Yes or Maybe. Personally, I would be in the No camp provided certain provisions were made in legislation to make it fair to the public interest and copyright owners interests.

Orphaned, Abandoned or Address Unknown
Let’s not kid ourselves about one thing. There are millions of copyright-protected works that have been either orphaned or abandoned. As both a photographer and writer, in my career I have produced works that did not have my name attached to them when published. I allowed that to happen because forces in the marketplace made it necessary. If someone finds and wants to use one of those works it is practically impossible for them to identify me as the copyright owner from whom to obtain a license. We can call the work in the above example an orphaned work. I also have allowed some works to go into the marketplace without attribution even when attribution was possible. Regardless of the reason, I chose not to track those works or make them traceable to me. I consider those works to be abandoned. I don’t care if people use them. But I still own the copyright to them so they cannot be used without my permission, which can not be obtained under current circumstances.

As copyright owners we have to collectively recognize that we are not simply victims. Many of us have allowed some of our works to become orphaned either because of market forces or because we chose to abandon them. We are therefore part of the problem. A problem we must help solve, if we are to protect our interests. We have no way to assure that all our works will be published with attribution. While we can swear to never abandon another work we cannot prevent a work from being orphaned in a marketplace in which attribution is not always given and in which our choice is to forego either attribution or income.

The absence of attribution is not the only factor that needs resolution. The other factor is the missing owner. During my tenure at ASMP it was not unusual for a researcher to call to inquire about the whereabouts of a photographer. The caller had found a desirable photograph attributed to a photographer. The problem was that no one had any idea how to contact the photographer. In fact, locating a photographer of a published work is almost impossible when that photographer is no longer in the photography business and therefore not listed in any of traditional professional directories. As a result, any solution must provide for the inclusion of a directory of copyright owners who want to be locatable. Years ago, in a talk given at the Cardozo School of Law in New York City I called for the Copyright Office to begin registering copyright owners not just copyright-protected works. That has not happened, but it ought to happen.

Scope of a Solution
A potential roadblock to a solution is the scope of any system that might be developed to deal with orphan works. I have heard suggestions for such systems that go from the sublime to the ridiculous. It would be sublime, if there were some orphan works licensing service that issued licenses and escrowed the funds in case the copyright owner turned up. It is not going to happen because it would require a huge investment to issue licenses and collect money for them, and because that service would have great difficulty verifying the authenticity of any claims made for escrowed licensing fees for works with no attribution. The costs of such a service would undoubtedly consume a huge portion of the fees collected. On a cost/benefit basis I think it is unfeasible to build such a system. The ridiculous solution I have heard mentioned is building a huge digital database in which copyright owners could post copies of their works so, if one is orphaned, any party desiring to use the work could go online and find it in the database along with the owner’s contact information. Can you imagine trying to find a specific work in a database that might have millions of photographs, articles, books, etc. added to it each year and hundreds of millions of works in the entire collection? Any system and therefore any solution has to be practical, manageable, and affordable.

Components of a Solution
The solution to the Orphan Works dilemma has four essential components: a public policy position, a registry of copyright owners, and a database of only orphan works for which the owners are being sought. The fourth component, an International Standard Copyright Number (ISCN), would not deal with legacy works, but it would be very useful to keep future works from being orphaned.

From a public policy standpoint the issue to be addressed is just what uses could be made of orphan works to achieve a balance between the public interest and copyright owners’ interests. That balance could be achieved by careful application of the constitutional purpose of the Copyright Law. The enlightenment of society was the goal of the Framers of the Constitution. They were not intent on making adverting and promotional IP more prolific, effective or inexpensive. To be true to the constitutional purpose of the copyright law and to the legal means to that end any use of orphan works ought to be limited to educational and informational uses that serve the public interest. There should be no right to use orphaned works to advertise or promote products, services, ideas or concepts. Advertising and promotion are done out of commercial self-interest and not in the public interest, which ought to be the focus of any orphan works legislation.

An Internet registry of copyright owners ought to be created so that they could make their contact information public in a central database and could update their contact information as required. There would be a one-time registration fee. Such a registry would make it easier to find the owner of an attributed work.

An Internet database of desired orphan works would contain information about any work for which an attempt was being made to locate its owner. This database, unlike a database of copyright-protected works would be feasible to build and maintain. The parties posting orphan works online in search of their owners would pay a fee to post a digital copy of the work and/or descriptive information about the work. It would be the copyright owner's choice whether or not to review the database periodically to see whether any of their works were posted there. A capability to search only works added since a specific date would mean that the entire database would not have to be searched each time an owner reviewed the site. When owners discovered their works, the prospective licensees could be identified and contacted by the owners. Unclaimed works would be deleted from the database after a certain waiting period before the work could be legally used. This method puts a reasonable burden on both the copyright owners and the prospective users of orphan works.

An internationally recognized numbering system should be modeled on the ISBN system. Placing an ISCN on a publication would allow the publisher to list in an Internet database the copyright owners of the individual works published by them in any specific application bearing an ISCN. An ISCN on both current and archived print and Internet publications would go a long way to simplifying the process of locating copyright owners. The ISCN would be connected to the copyright owners contact database previously mentioned. Over time, the ISCN would reduce dependency on the orphan works database since works published with an ISCN could be easily researched.

Balancing Interests
If Orphan Works legislation is introduced in this or a future Congress, stakeholders will be advocating for their interests. If legislators want to serve the public interest they will have keep the focus on the public interest, which is what the Copyright Law is intended to serve. If individual independent creators are to be successful in protecting their interests, they must demonstrate their willingness to serve the public interest while they minimize the financial consequences to themselves. Properly addressed with selfishness restrained on the part of the stakeholders Orphan Works legislation can and should find its way into law.

(c) 2007 Richard Weisgrau [contact] [bio]