Can Congress embrace and enact sensible copyright policy? Four years ago, for a brief shining moment, it seemed the answer might be yes, as various interested stakeholders rallied around long-overdue legislation that would have helped to fix the orphan works problem.  Orphan works are those whose owner cannot be located. Consequently, those who would like to use and share these works may hesitate to do so out of fear that they could later be found liable for copyright infringement because they didn’t get permission.  In 2008, a variety of interested parties managed to come up with a way to limit that liability.  It wasn’t perfect, but it represented real progress.

Sadly, that effort collapsed, thanks in part to a vigorous FUD campaign.  In the past several months, however, momentum started slowly building once again toward a solution. Last spring, scholars, librarians and activists gathered in Berkeley, California, to discuss possible solutions. Shortly thereafter, the Copyright Office asked the public to weigh in.  Today, the Electronic Frontier Foundation and Public Knowledge responded, as did many others.

Consider the following examples under the current system: 

  • A library has a vast archive of photos and music from the Depression Era. It would like to put this archive online, so people who aren’t able to visit the library can use the works for pleasure, research, making art, etc. But the library is unable to locate owners for 20 percent of the works in the archive and is afraid that if it displays the works online without permission, it would be sued for copyright infringement if those owners emerged later.
  • A documentarian stumbles upon an album full of photographs from the 1960s and it's a treasure trove of local history, with photos of politicians, celebrities, and events. He asks if the thrift store where he found it can identify the person who brought the photo album in, but no one can remember. The documentarian wants to use some of the photos in a film, but he's aware that using the images could infringe someone’s copyright. By using the photos without permission, he could be opening himself up to thousands of dollars in damages, per photo, if the original photographer (or his or her estate, or any legitimate owner of the copyright) steps forward and sues him for copyright infringement.

As EFF and PK pointed out in our comments, the good news is that the fair use doctrine protects many uses of orphan works.  Even better, recent court decisions have helped create more legal certainty in this area, especially for libraries and nonprofit institutions.  The bad news is that significant legal risk still exists.

One way to help alleviate that risk is to limit what a copyright owner can get if the secondary user made a reasonable effort to find that owner and did not succeed.  A small adjustment to the Copyright Act could accomplish that much, at relatively little or no cost to copyright owners.  After all, a second user who acted in bad faith would still be on the hook for full damages. 

Of course, the orphan works issue is just a symptom of a larger problem: our broken copyright system.  As we explained in our comments, the persistent problem of orphan works is due mostly to three dangerous and sadly persistent aspects of U.S. copyright law: extremely long terms, high statutory damages, and a lack of formalities for copyright protection.

Copyright law needs real reform if it is to serve its constitutional purpose.  Fixing orphan works would help us to get us closer to that goal.  We’ll keep you posted on what you can do to help make it happen.  Let’s fix this one – and then let’s fix the rest.