An Update on Orphan Works

By Pike, George H. | Information Today, July-August 2007 | Go to article overview

An Update on Orphan Works


Pike, George H., Information Today


Copyright has become a lead item on just about everyone's agenda these days. It's a complicated issue that is demanding more and more of our attention for obvious reasons.

First, it's important to note that copyright law seeks to find a balance between opposing interests. On one side are the interests of copyright owners, those who have created works and are seeking both commercial return and creative control over those works. On the other side are the interests of those who use copyrighted works to build and create new works.

The Constitution, in permitting Congress to create copyright law, recognized this balance in its pronouncement that the purpose of copyright is to "Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Over the last 2 centuries, Congress has passed a number of copyright statutes to try to maintain this balance. The Copyright Act of 1976--with some changes such as the Copyright Term Extension Act (CTEA) and the Digital Millennium Copyright Act (DMCA)--is the current law. It replaced the earlier Copyright Act of 1909 as new media technologies and a changing society purported to upset the balance that had existed.

But since the 1976 act went into effect, technology and changes in our more media-driven society have made the copyright balance more difficult to achieve. In many respects, changes such as the CTEA and the DMCA have added to the difficulty. The issue of orphan works is one area where finding a balance within copyright law is proving to be quite a challenge.

Unidentified Copyright Owner

Orphan works, which are a creature of the Internet and other new media platforms, are defined as copyrighted works for which the copyright holder cannot be identified or located. People who wish to use that work as the basis for creating new work--such as a digital archive, compilation, or adaptation--feel unable to do so because of the risks associated with copyright infringement. If they can't find a person to get permission and go ahead with their project, a risk of damages exists if the copyright owner eventually turns up and sues for infringement.

Orphan works have presented legal challenges that have been recognized by the Supreme Court, Congress, and the U.S. Copyright Office. In Eldred v. Ashcroft, which affirmed the 20-year extension of copyright provided by the CTEA, Justice Stephen Breyer wrote, "The potential users of such works include ... historians, scholars, teachers, writers, artists, database operators, and researchers of all kinds--those who want to make the past accessible for their own use or for that of others.... [W]here computer-accessible databases promise to facilitate research and learning, the permissions requirement can stand as a significant obstacle."

Copyright Office Report

Congress responded by asking the U.S. Copyright Office to investigate the problem. In January 2006, the Copyright Office issued a 127-page report outlining the problem and recommending both legislative and nonlegislative solutions. The 109th Congress seemed to take on this issue with several proposals to address the orphan works problem. However, none of those proposals passed by the end of the Congress in December 2006; as of this writing, no proposals have been introduced by the current Congress.

The appellate courts have also been reluctant to explore any solutions. In May 2007, a California federal appeals court rejected a claim that current copyright law--which creates an automatic copyright lasting a minimum of 70 years--violates the First Amendment. The court found that even though the process of obtaining permission to digitize works with little or no commercial value was "overwhelming" and that the identity of a copyright owner was sometimes "impossible to obtain," this was not enough to trigger a violation of free speech under the First Amendment.

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An Update on Orphan Works
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