Archive for April 2nd, 2005

Orphan Works

Posted in Copyright on April 2nd, 2005

An orphan work is a work protected by copyright “whose owners are difficult or even impossible to locate,” to use the wording of the Copyright Office’s Notice of Inquiry on Orphan Works, issued January 26, 2005. Here’s a little more from the summary of the notice:

Concerns have been raised that the uncertainty surrounding ownership of such works might needlessly discourage subsequent creators and users from incorporating such works in new creative efforts or making such works available to the public. This notice requests written comments from all interested parties. Specifically, the Office is seeking comments on whether there are compelling concerns raised by orphan works that merit a legislative, regulatory or other solution, and what type of solution could effectively address these concerns without conflicting with the legitimate interests of authors and right holders.

It’s a real problem–but it’s a lot worse problem now than it was decades ago. Back then (at various stages):

  • You had to register a work with the Copyright Office for it to be protected by copyright at all.
  • Copyright expired after 28 years or, with explicit renewal, after 56 years. Thus, it was impossible for a work to be orphaned by more than 28 years
  • Even after the term was extended, you still had the registration requirement, which at least provided a starting point for finding the copyright holder. That requirement no longer stands.

The Copyright Act of 1976, which eliminated registration and even the requirement for a (c) mark, made orphans far more likely–after all, there’s no longer even a starting point to track down the copyright holder. This has made it nearly impossible to republish older books, movies, sound recordings, whatever–stuff where the owner has disappeared, but might reappear and sue once the republication happens.

The comment period ended March 25. It was well publicized by Mary Minow and others in the library and copyright communities–so well publicized that 700 comments were received by the deadline.

This is an important issue for libraries and the creative arts. A combination of factors meant that I didn’t include a heads-up during the comment period–and the sheer bulk of comments assure that I won’t even attempt anything like a coherent review of the comments. When (if) the Copyright Office issues a statement, I expect to comment on it (and may comment on a few of the written comments and proposed bills relating to orphan works).

Meanwhile, if you recognize how important this really is, you might want to do some of your own reading. Mary Minow recently posted a link to (and summary of) ALA’s draft proposal for orphan works, and previously posted her own written comment.

Other starting points include Orphan Works (thanks, Mary, for that link as well) and Public Knowledge, but there’s a host of others as well.


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