Introduction
The copyright laws in the United States provide protection for a term equal to the life of the author plus seventy years1, at present. Over that period of time, a copyrighted work may pass through a number of hands and the ownership picture may become murky. Since registration of copyrighted works, and therefore the filing of assignment documents, is optional in the United States, many copyright holders are difficult to track down even from the point of inception of the work. The term “orphan work” refers to those works whose owners cannot be located through any reasonable effort.
While one of the goals of the body of intellectual property law embodied by copyrights is to encourage the creation of new works by granting certain rights to an author of a protected work, the copyright laws are also designed to encourage the further use of those works. This is accomplished by allowing a copyright holder to transfer each of the various rights conferred by a copyright individually. This goal of encouraging additional use of copyrighted works cannot be furthered, however, if the owner of a copyrighted work cannot be located.
The problem of locating a copyright owner becomes more difficult with certain types of works. For example, a photograph typically lacks any information regarding ownership of the copyrights or even who created it.2 Despite the general sentiment that orphan works present a problem, the evidence remains largely anecdotal.3 One may therefore be led to ask whether there even is an orphan works problem to begin with. Inquiries into the orphan works problem often begin with the fair assumption that individuals seeking to use and extend existing copyrighted works may be discouraged by the risk of liability should the owner of an orphan work turn up and demand compensation.
Regardless of the immediacy of the threat to intellectual progress created by orphan works, several countries have had systems in place for a number of years in order to combat the problem of stagnant works, such as those that have been orphaned. For many more countries, a solution has not yet been implemented, and the orphan works problem is the subject of myriad studies. This paper will look at the systems that are in place, as well as the inquiries into the
1 17 U.S.C. 302 (2000).
2 21 Berkeley Tech L.J. 265, 268. 3 Id. at 266.
-2-
Electronic copy available at: http://ssrn.com/abstract=989213
problem in the United States and in Europe. What seems at first like a minor by-product of modern copyright law in reality threatens the need to rethink our copyright regimes in order to better serve the real functions of the property right.
United States Inquiry into Orphan Works
In order to determine a workable solution to the orphan works problem within the context of United States laws, a common approach is to establish who the actors are and what a proposed law would grant to each party. In most situations, three parties can be identified, namely the party wishing to use an orphaned work, the owner of the orphaned work, and the government entity that administers the copyright laws.
With the parties established, a solution needs to carefully balance the rights and responsibilities of each party. Different solutions may give more or less weight to particular factors, such as the likelihood of promoting the creation of the greatest number of works, or the most economically efficient result.
With that in mind, the United States Copyright Office issued a request for comments on the matter. The Copyright Office received over 700 comments, with many approaching the issue in the aforementioned manner, balancing the rights and responsibilities of each party. One comment outlined a four-step process by which the Copyright Office would work to provide enhanced database resources, as well as a methodology for accurately determining that a work has been orphaned, where copyright holders would maintain the records for their works, and where orphaned works could be licensed for use.4
In his comment, Mr. Peters details how each of these steps would alleviate or eliminate the orphan works problem. In practice, each of the steps could be implemented individually or as some other subset of the whole. The first step would involve improving the quality of searching resources. This includes not only identifying the owner of a copyrighted work, but also the effective year of the copyright. Presently, a large body of research information at the Copyright Office, namely the Catalog of Copyright Entries, remains unavailable in digitized
4 Comments by Nathan Peters, web available at
http://www.copyright.gov/orphan/comments/OW0670-Peters.pdf
-3-
format and must be manually searched.5 Even so, there is no requirement to record assignments of title in a copyrighted work, and as such it may prove impossible to locate the present owner of a work even with complete records on the authors.
By establishing standards defining a sufficient search leading to a determination that a work has been orphaned, Congress could place persons interested in using orphaned works on notice as to their responsibilities in making such a determination. In return, such a person, if accused of copyright infringement, would receive some benefit as a result of having a presumption that an adequate search had been completed. Mr. Peters suggests two existing mechanisms for accomplishing this, either allowing individuals to search the records of the Copyright Office themselves, or paying a fee to the Copyright Office to conduct the search for them.6
A third step would then require the establishment of additional responsibilities on a copyright holder to prevent a copyrighted work from being orphaned. In short, Mr. Peters suggests that copyright holders should be required to register their works to protect against the works being labeled as orphaned. Finally, with a work properly defined as orphaned, Mr. Peters suggests the adoption of the Canadian “case-by-case” approach, discussed below, followed by adoption of a compulsory license system such as the one used in Japan, also discussed below.
However, the inquiry is not as simple as finding an elegant solution that addresses the problem in a vacuum. For better or worse, the United States is subject to international treaties governing certain details of the implementation of copyright laws. The Berne Convention is among these, and requires that copyright protection be readily granted without the need for formalities. Specifically, the Berne Convention provides that:
The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be
5 Id. 6 Id.
-4-
governed exclusively by the laws of the country where protection is claimed.7
It is possible to read this text to allow systems whereby formalities are not required but are encouraged. Such a system is presently in place in the United States, whereby registration of a copyright is not required, but benefits abound for parties that acquire a registration, including the possibility of statutory damages for each instance of copyright infringement. On the other hand, it is also possible to read this requirement as allowing systems whereby formalities are not required to provide the minimal level of protection required by international treaties, but are required to provide additional protection.
In a comment, Professors Paul Goldstein and Jane C. Ginsburg consider the possibility of incorporating a compulsory license within this framework.8 They argue that a primary consideration above all others when determining the approach the United States should take is ensuring a complete understanding of the facts such that a proper assessment can be made as to whether a proposal meets the obligations under Berne and TRIPs. “For example,” the comment reads, “a compulsory license (or, possibly, exception) limited to the library-archives setting might pass muster under [Article 13 of TRIPs] where a more generalized exception/license might not.” This refers to the requirement under Article 13, commonly termed the “Berne three-step test,” which states:
Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.9
The three parts of the “three-step test” are shown in bold typeface.
It should be noted, however, that Berne and TRIPs are only concerned with the protection of the rights of foreign authors vis-à-vis the rights of citizens of treaty signatories. One possible solution, it may be reasoned, would be to simply exempt authors from Berne or WTO member
7 Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971), Article 5(2)
8 Comments by Paul Goldstein and Jane C. Ginsburg, web available at
http://www.copyright.gov/orphan/comments/OW0519-Goldstein-Ginsburg.pdf
9 Uruguay Round Agreement: TRIPS, Article 13 -5-

states from any formality requirements, only holding the United States’ own citizens to the higher formality standard. Goldstein and Ginsburg caution against this “two-tier” approach, arguing that many of the works concerned in the orphan works problem are going to be non-US works, but, perhaps more importantly, the problem remains that if one cannot identify the author of a work, it is likely impossible to ascertain the nationality of the author.
Unfortunately, the requirement against formalities appears to defeat an arguably better solution whereby copyright term is guaranteed for a fixed number of years but may be extended beyond those years if a work remains registe
Introduction
The copyright laws in the United States provide protection for a term equal to the life of the author plus seventy years1, at present. Over that period of time, a copyrighted work may pass through a number of hands and the ownership picture may become murky. Since registration of copyrighted works, and therefore the filing of assignment documents, is optional in the United States, many copyright holders are difficult to track down even from the point of inception of the work. The term “orphan work” refers to those works whose owners cannot be located through any reasonable effort.
While one of the goals of the body of intellectual property law embodied by copyrights is to encourage the creation of new works by granting certain rights to an author of a protected work, the copyright laws are also designed to encourage the further use of those works. This is accomplished by allowing a copyright holder to transfer each of the various rights conferred by a copyright individually. This goal of encouraging additional use of copyrighted works cannot be furthered, however, if the owner of a copyrighted work cannot be located.
The problem of locating a copyright owner becomes more difficult with certain types of works. For example, a photograph typically lacks any information regarding ownership of the copyrights or even who created it.2 Despite the general sentiment that orphan works present a problem, the evidence remains largely anecdotal.3 One may therefore be led to ask whether there even is an orphan works problem to begin with. Inquiries into the orphan works problem often begin with the fair assumption that individuals seeking to use and extend existing copyrighted works may be discouraged by the risk of liability should the owner of an orphan work turn up and demand compensation.
Regardless of the immediacy of the threat to intellectual progress created by orphan works, several countries have had systems in place for a number of years in order to combat the problem of stagnant works, such as those that have been orphaned. For many more countries, a solution has not yet been implemented, and the orphan works problem is the subject of myriad studies. This paper will look at the systems that are in place, as well as the inquiries into the
1 17 U.S.C. 302 (2000).
2 21 Berkeley Tech L.J. 265, 268. 3 Id. at 266.
-2-
Electronic copy available at: http://ssrn.com/abstract=989213
problem in the United States and in Europe. What seems at first like a minor by-product of modern copyright law in reality threatens the need to rethink our copyright regimes in order to better serve the real functions of the property right.
United States Inquiry into Orphan Works
In order to determine a workable solution to the orphan works problem within the context of United States laws, a common approach is to establish who the actors are and what a proposed law would grant to each party. In most situations, three parties can be identified, namely the party wishing to use an orphaned work, the owner of the orphaned work, and the government entity that administers the copyright laws.
With the parties established, a solution needs to carefully balance the rights and responsibilities of each party. Different solutions may give more or less weight to particular factors, such as the likelihood of promoting the creation of the greatest number of works, or the most economically efficient result.
With that in mind, the United States Copyright Office issued a request for comments on the matter. The Copyright Office received over 700 comments, with many approaching the issue in the aforementioned manner, balancing the rights and responsibilities of each party. One comment outlined a four-step process by which the Copyright Office would work to provide enhanced database resources, as well as a methodology for accurately determining that a work has been orphaned, where copyright holders would maintain the records for their works, and where orphaned works could be licensed for use.4
In his comment, Mr. Peters details how each of these steps would alleviate or eliminate the orphan works problem. In practice, each of the steps could be implemented individually or as some other subset of the whole. The first step would involve improving the quality of searching resources. This includes not only identifying the owner of a copyrighted work, but also the effective year of the copyright. Presently, a large body of research information at the Copyright Office, namely the Catalog of Copyright Entries, remains unavailable in digitized
4 Comments by Nathan Peters, web available at
http://www.copyright.gov/orphan/comments/OW0670-Peters.pdf
-3-
format and must be manually searched.5 Even so, there is no requirement to record assignments of title in a copyrighted work, and as such it may prove impossible to locate the present owner of a work even with complete records on the authors.
By establishing standards defining a sufficient search leading to a determination that a work has been orphaned, Congress could place persons interested in using orphaned works on notice as to their responsibilities in making such a determination. In return, such a person, if accused of copyright infringement, would receive some benefit as a result of having a presumption that an adequate search had been completed. Mr. Peters suggests two existing mechanisms for accomplishing this, either allowing individuals to search the records of the Copyright Office themselves, or paying a fee to the Copyright Office to conduct the search for them.6
A third step would then require the establishment of additional responsibilities on a copyright holder to prevent a copyrighted work from being orphaned. In short, Mr. Peters suggests that copyright holders should be required to register their works to protect against the works being labeled as orphaned. Finally, with a work properly defined as orphaned, Mr. Peters suggests the adoption of the Canadian “case-by-case” approach, discussed below, followed by adoption of a compulsory license system such as the one used in Japan, also discussed below.
However, the inquiry is not as simple as finding an elegant solution that addresses the problem in a vacuum. For better or worse, the United States is subject to international treaties governing certain details of the implementation of copyright laws. The Berne Convention is among these, and requires that copyright protection be readily granted without the need for formalities. Specifically, the Berne Convention provides that:
The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be
5 Id. 6 Id.
-4-
governed exclusively by the laws of the country where protection is claimed.7
It is possible to read this text to allow systems whereby formalities are not required but are encouraged. Such a system is presently in place in the United States, whereby registration of a copyright is not required, but benefits abound for parties that acquire a registration, including the possibility of statutory damages for each instance of copyright infringement. On the other hand, it is also possible to read this requirement as allowing systems whereby formalities are not required to provide the minimal level of protection required by international treaties, but are required to provide additional protection.
In a comment, Professors Paul Goldstein and Jane C. Ginsburg consider the possibility of incorporating a compulsory license within this framework.8 They argue that a primary consideration above all others when determining the approach the United States should take is ensuring a complete understanding of the facts such that a proper assessment can be made as to whether a proposal meets the obligations under Berne and TRIPs. “For example,” the comment reads, “a compulsory license (or, possibly, exception) limited to the library-archives setting might pass muster under [Article 13 of TRIPs] where a more generalized exception/license might not.” This refers to the requirement under Article 13, commonly termed the “Berne three-step test,” which states:
Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.9
The three parts of the “three-step test” are shown in bold typeface.
It should be noted, however, that Berne and TRIPs are only concerned with the protection of the rights of foreign authors vis-à-vis the rights of citizens of treaty signatories. One possible solution, it may be reasoned, would be to simply exempt authors from Berne or WTO member
7 Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971), Article 5(2)
8 Comments by Paul Goldstein and Jane C. Ginsburg, web available at
http://www.copyright.gov/orphan/comments/OW0519-Goldstein-Ginsburg.pdf
9 Uruguay Round Agreement: TRIPS, Article 13 -5-

states from any formality requirements, only holding the United States’ own citizens to the higher formality standard. Goldstein and Ginsburg caution against this “two-tier” approach, arguing that many of the works concerned in the orphan works problem are going to be non-US works, but, perhaps more importantly, the problem remains that if one cannot identify the author of a work, it is likely impossible to ascertain the nationality of the author.
Unfortunately, the requirement against formalities appears to defeat an arguably better solution whereby copyright term is guaranteed for a fixed number of years but may be extended beyond those years if a work remains registe
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