E. Conclusions and Recommendations
Section VI of the Report contains the Copyright Office’s conclusions and recommendations.9 Our conclusions are:
• The orphan works problem is real.
• The orphan works problem is elusive to quantify and describe
comprehensively.
• Some orphan works situations may be addressed by existing
copyright law, but many are not.
• Legislation is necessary to provide a meaningful solution to the
orphan works problem as we know it today.
We recommend that the orphan works issue be addressed by an amendment to the Copyright Act’s remedies section. The specific language we recommend is provided at the end of this Report.10
9 See infra page 92. 10 See infra page 127.
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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE
In considering the orphan works issue and potential solutions, the Office has kept in mind three overarching and related goals. First, any system to deal with orphan works should seek primarily to make it more likely that a user can find the relevant owner in the first instance, and negotiate a voluntary agreement over permission and payment, if appropriate, for the intended use of the work. Second, where the user cannot identify and locate the copyright owner after a reasonably diligent search, then the system should permit that specific user to make use of the work, subject to provisions that would resolve issues that might arise if the owner surfaces after the use has commenced. In the roundtable discussions, there seemed to be a clear consensus that these two goals were appropriate objectives in addressing the orphan works issues. Finally, efficiency is another overarching consideration we have attempted to reflect, in that we believe our proposed orphan works solution is the least burdensome on all the relevant stakeholders, such as copyright owners, users and the federal government.
The proposed amendment follows the core concept that many commenters favored as a solution to the orphan works problem: if the user has performed a reasonably diligent search for the copyright owner but is unable to locate that owner, then that user should enjoy a benefit of limitations on the remedies that a copyright owner could obtain against him if the owner showed up at a later date and sued for infringement. The recommendation has two main components:
• the threshold requirements of a reasonably diligent search for the copyright owner and attribution to the author and copyright owner; and
• the limitation of remedies that would be available if the user proves that he conducted a reasonably diligent search.
The details of the recommendation are set out in Section VI, followed by a discussion of some other proposals that we considered carefully, but ultimately decided not to recommend.11