Preparing for Orphan Works Legislation

by Victor S. Perlman, Esq.

June 01, 2012

There’s a train a-comin’, and it’s called Orphan Works legislation. In case you’re not familiar with the term, “orphan works” are creative works that may or may not be under copyright and whose rights-holder cannot be located. In some cases, the inability to locate someone who can grant usage rights may be because the rights-holder cannot be identified. In other cases, where the rights-holder is known, current contact information may not be available or findable.

The term “orphan works” was originally coined back in the mid-1990s. However, it came to national prominence roughly six years ago, when the Copyright Office ordered a study on the problem of orphan works. After the study was completed, the Copyright Office issued a report that included a proposed bill for Congress to consider.

Accordingly, bills were crafted in both the House and Senate. As part of what is known as the legislative process, representatives of key interested parties on all sides were brought in to negotiate compromises and refine language in the hopes of producing bills that would receive broad support among most constituencies. During the next couple of years, I was heavily involved in those discussions, and there were many weeks in which I spent far more time in D.C. than in my office.

The basic concept behind the kind of orphan works legislation that has been considered in the U.S., at least so far, is that someone who wants to use a copyrighted work must make a reasonably diligent search to find and contact someone who is in a position to license the use. If that search proves to be unsuccessful, the user gets to use the work without paying a licensing fee and without being subject to the normal consequences of infringement. If the rights-holder then comes forward and contacts the user, there are various possible scenarios, including stopping the use and/or continuing the use with the payment of reasonable compensation. By the end of the discussions, there were lots of other wrinkles, but that was the general outline.

The parties to the negotiations all felt strongly about their respective positions and the interests of their constituencies. That was certainly the case for those of us who represented photographers and other visual artists. Visual works present unusual problems and are among the most challenging issues in the case of orphan works.

There are several reasons for this, including: the fact that most digital searches are based on text, and text searches are of almost no help in finding the owners of rights to visual works; searches of records at the Copyright Office are of virtually no assistance for visual works, since those searches are usually based on having the very information that is being searched for; copyright notices and other forms of attribution are easily detached from the visual works on which they belong, whether in print or digital media; and digital searches are of almost no use in tracking down the rights-holders for the enormous body of visual works that exist only in non-digital media.

After a couple of years of intense negotiations spanning two Congresses, there were two bills pending. The Senate version passed through a device known as “unanimous consent.” The House version, which contained some additional protections for copyright owners and which I, therefore, supported, was still pending in the House when that Congress ended, thereby killing both bills. Following that, there were several years in which very little activity took place regarding orphan works in Congress. There were several reasons for this, but I suspect that a large part of it was that everyone involved was so exhausted from the process that there was little desire to start running another legislative marathon. At the same time, everyone was watching to see what would happen with the proposed settlement in the Authors Guild class action against Google.

Interestingly, while we were working on the ultimately failed Orphan Works bills here in the States, other developed countries, particularly the EU, were watching with keen interest. When our efforts at Orphan Works legislation went into hibernation, foreign efforts did not. Legislation is in various stages in many other countries right now, and the EU has passed an Orphan Works bill (although it is not clear how that law would work, given the fact that it is subject to the separate laws of each of the member countries).

For whatever reasons, there is now a rising tide in this country to reintroduce an Orphan Works law. As I write this article, I have already participated in or am scheduled to appear on at least three major panel discussions of Orphan Works and/or related issues this year. It’s clear that the tide of support for Orphan Works legislation is rising, and it is one of the main items on the agenda for the Copyright Office. The forces behind that tide are not the creators or rights-holders; they are communities of users of copyrighted content who want free access.

To put it simply, everyone except copyright owners wants everything that is available on the Internet to be free; i.e., it is a case of you and me against the world. When Orphan Works legislation comes, and I am certain that it will, you will need to take grassroots action and contact your legislators as you have never done before. If you don’t, your rights will be definitely eroded. As Chairman Lamar Smith said to me during one of the rounds of negotiations on the language of the House Orphan Works bill, “This train is going to leave the platform, with you or without you, and you have to decide whether you’re going to be on it.” What he did not say, but what is clear to me, is that if you are not on that train, you will be under it.


Victor Perlman is General Counsel to the American Society of Media Photographers, Inc. (ASMP). He is co-author (with Richard Weisgrau) of the book Licensing Photography, published by Allworth Press. 

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