1. The Reasonably Diligent Search Requirement
Subsection (a) sets out the basic qualification the user of the orphan work must meet – he must perform a “reasonably diligent search” and have been unable to locate the owner of the copyright in the work. Such a search must be completed before the use of
11 See infra page 93-122. Page 8

UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS
the work that constitutes infringement begins. The user has the burden of proving the search that was performed and that it was reasonable, and each user must perform a search, although it may be reasonable under the circumstances for one user to rely in part on the search efforts of another user.
Several commenters complained of the situation where a user identifies and locates the owner and tries to contact the owner for permission, but receives no response from the owner. They suggested that works in these situations should be considered orphan works. We have concluded that such a solution is not warranted, as it touches upon some fundamental principles of copyright, namely, the right of an author or owner to say no to a particular permission request, including the right to ignore permission requests. For this reason, once an owner is located, the orphan works provision becomes inapplicable.
The proposal adopts a very general standard for reasonably diligent search that will have to be applied on a case-by-case basis, accounting for all of the circumstances of the particular use. Such a standard is needed because of the wide variety of works and uses identified as being potentially subject to the orphan works issues, from an untitled photograph to an old magazine advertisement to an out-of-print novel to an antique postcard to an obsolete computer program. It is not possible at this stage to craft a standard that can be specific to all or even many of these circumstances. Moreover, the resources, techniques and technologies used to investigate the status of a work also differ among industry sectors and change over time, making it hard to specify the steps a user must take with any particularity.
Section VI contains a discussion of several factors that commenters identified as being relevant to the reasonableness of a search, including:
• The amount of identifying information on the copy of the work itself, such as an author’s name, copyright notice, or title;
• Whether the work had been made available to the public;
• The age of the work, or the dates on which it was created and made
available to the public;
• Whether information about the work can be found in publicly available records, such as the Copyright Office records or other resources;
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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE
• Whether the author is still alive, or the corporate copyright owner still exists, and whether a record of any transfer of the copyright exists and is available to the user; and
• The nature and extent of the use, such as whether the use is commercial or noncommercial, and how prominently the work figures into the activity of the user.
Importantly, our recommendation does not exclude any particular type of work from its scope, such as unpublished works or foreign works. Section VI explains why we believe that unpublished works should not be excluded from this recommendation, and how the unpublished nature of a work might figure into a reasonable search determination.
Our recommendation permits, and we encourage, interested parties to develop guidelines for searches in different industry sectors and for different types of works. Most commentators were supportive of voluntary development of such guidelines. When asked whether the Copyright Office should have authority to embody guidelines in more formal, binding regulations to provide certainty, we were surprised to hear that most user groups – whom we thought would desire more certain rules for searches – opposed the Copyright Office issuing rules related to search criteria. Based on our desire to maintain flexibility in the reasonable search standard and this expressed opposition to formal rulemaking, we have not proposed that the orphan works legislation provide the Office with any rulemaking authority.
1. The Reasonably Diligent Search Requirement
Subsection (a) sets out the basic qualification the user of the orphan work must meet – he must perform a “reasonably diligent search” and have been unable to locate the owner of the copyright in the work. Such a search must be completed before the use of
11 See infra page 93-122. Page 8

UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS
the work that constitutes infringement begins. The user has the burden of proving the search that was performed and that it was reasonable, and each user must perform a search, although it may be reasonable under the circumstances for one user to rely in part on the search efforts of another user.
Several commenters complained of the situation where a user identifies and locates the owner and tries to contact the owner for permission, but receives no response from the owner. They suggested that works in these situations should be considered orphan works. We have concluded that such a solution is not warranted, as it touches upon some fundamental principles of copyright, namely, the right of an author or owner to say no to a particular permission request, including the right to ignore permission requests. For this reason, once an owner is located, the orphan works provision becomes inapplicable.
The proposal adopts a very general standard for reasonably diligent search that will have to be applied on a case-by-case basis, accounting for all of the circumstances of the particular use. Such a standard is needed because of the wide variety of works and uses identified as being potentially subject to the orphan works issues, from an untitled photograph to an old magazine advertisement to an out-of-print novel to an antique postcard to an obsolete computer program. It is not possible at this stage to craft a standard that can be specific to all or even many of these circumstances. Moreover, the resources, techniques and technologies used to investigate the status of a work also differ among industry sectors and change over time, making it hard to specify the steps a user must take with any particularity.
Section VI contains a discussion of several factors that commenters identified as being relevant to the reasonableness of a search, including:
• The amount of identifying information on the copy of the work itself, such as an author’s name, copyright notice, or title;
• Whether the work had been made available to the public;
• The age of the work, or the dates on which it was created and made
available to the public;
• Whether information about the work can be found in publicly available records, such as the Copyright Office records or other resources;
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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE
• Whether the author is still alive, or the corporate copyright owner still exists, and whether a record of any transfer of the copyright exists and is available to the user; and
• The nature and extent of the use, such as whether the use is commercial or noncommercial, and how prominently the work figures into the activity of the user.
Importantly, our recommendation does not exclude any particular type of work from its scope, such as unpublished works or foreign works. Section VI explains why we believe that unpublished works should not be excluded from this recommendation, and how the unpublished nature of a work might figure into a reasonable search determination.
Our recommendation permits, and we encourage, interested parties to develop guidelines for searches in different industry sectors and for different types of works. Most commentators were supportive of voluntary development of such guidelines. When asked whether the Copyright Office should have authority to embody guidelines in more formal, binding regulations to provide certainty, we were surprised to hear that most user groups – whom we thought would desire more certain rules for searches – opposed the Copyright Office issuing rules related to search criteria. Based on our desire to maintain flexibility in the reasonable search standard and this expressed opposition to formal rulemaking, we have not proposed that the orphan works legislation provide the Office with any rulemaking authority.
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