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A Proposal to Solve the "Orphan Works" Problem
Saturday, March 26 2005 @ 10:26 AM EST

The Copyright Office has been holding hearings on access to "orphan" works.  These aren't movies about kids who have lost their parents -- Little Orphan Annie, say.  They are works which are still under copyright but have no copyright holder (or no locatable copyright holder.)   It might sound esoteric, maybe even boring, But it isn't. Here's why I think it matters.

"Orphan works" probably comprise the majority of the record of 20th century culture,  and their orphan status means we have practically no access to them. 

In all likelihood no copyright owner would show up to object if one digitized an old book, restored an orphan film, or used an obscure musical score.  But who can afford to take the risk?  The normal response of archivists, libraries, film restorers, artists, scholars, educators, publishers, and others is generally to give up -- it is just not worth the hassle and risk. 

The result?   Needlessly disintegrating films, prohibitive costs for libraries, incomplete and spotted histories, thwarted scholarship, digital libraries put on hold, delays to publication. And all of this waste is entirely unnecessary.

Is there any solution?  Duke's Center for the Study for the Public Domain has produced a report to the Copyright Office that offers one.

They interviewed artists and librarians and filmmakers about their problems, and they offer a proposal on how to fix the system so it works. Actually, they've offered two proposals, one for Orphan Works and one for Orphan Films, both pdfs. The conclusion of the Orphan Works proposal reads, in part, like this:

The orphan works problem is so tragic because it denies access without producing incentives. It undercuts the constitutional goals of the copyright scheme, hurts libraries and archives, presents the new generation of authors and innovators with obstacles rather than solutions, and condemns large swathes of culture to literal physical destruction. Yet it does all this harm while actually serving authors very poorly. We believe our analysis of the orphan works problem indicates its magnitude and severity, and we are grateful to have been accorded the opportunity to put forward a proposal to solve it.

They list 7 features that they believe any solution to the problem must include: Clear Guidelines, Low Levels of Required Search (Perhaps Specified According to a Few Context Sensitive Classes), Broad coverage, Efficient Administration, Notice, Safe Harbor, and Protection of Value-Added Restorers and Reusers. The last point, having a search and notice process, is elaborated on like this:

Many users will be satisfied with a solution that allows them to use orphan works securely after a defined search and notice period. If a copyright owner subsequently appears, immunity based on a cessation of the challenged use will suffice. But for those users who plan to invest substantial hours or dollars in restoring, changing or adapting an orphan work for the future, this solution will not be adequate. It is small comfort, after thousands of hours or dollars have been spent digitizing a fragile film, to be told that if one stops and hands over one’s work, no action will be brought. Indeed, such a system would encourage “submarine orphan works” –- copyright owners who lurk and wait until value has been added by a second-comer, before announcing themselves. In order to give improvers the security they need, a second option must be provided – one that allows continued use on payment of a specified, low royalty.

It's a rational, well thought-through proposal, with the intent of providing fairly for all parties, and I hope you have a moment to read it. You may have other ideas of your own to amplify or tweak the proposal.

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