Last year, the US Copyright Office announced they would look into the so-called orphan works problem, an orphan work being a copyrighted creative work whose owner is hard or impossible to find.
Why is it so hard and who cares?
Copyright protection kicks in without taking any proactive measures, so there's no official record of ownership to consult in looking for an owner with whom to negotiate use. Unlike sex offenders, copyright owners don't have to go register every place they move. For this reason, estimators say that the majority of 20th century culture is stuck in this purgatory. I call it a purgatory because if a subsequent artist can't find the owner of the orphan work, she won't be able to use the orphan for fear that the owner will come out of the woodwork and demand high licensing or royalty rates for the use, stifling new creative efforts and public access to orphans.
I wantt this building to shine like the top of the chrysler building!
The Copyright Office Report
So, the Copyright Office asked for public comments on whether there were compelling concerns raised by orphan works that merit a legislative, regulatory, or other solution, and if so, what type of solution could effectively address these concerns without conflicting with the legitimate interests of authors and right holders.
They got a lot of comments. Initial ones and Reply ones.
They analyzed them and integrated them into this new report, released and handed to the Senate Judiciary Committee (teams Leahy and Hatch) last week. I've been waiting to comment until I've read the report, but it's many many pages long and I've currently got prior commitments for my eyes. In lieu of my own thoughts, I give you those of Digital Music News:
Proposed solutions included improving existing database records and search methods, though various legislative solutions were also suggested. That includes limiting remedies on the use of an orphaned work, or changing various tax or bankruptcy codes that cause orphan works to come into existence in the first place. The issue traverses a number of industries beyond music, including publishing, photography, academia, and film.
and Public Knowledge's Gigi Sohn weighs in here:
"The report is a tremendous contribution to the field, with substantial analysis and strong recommendations on many aspects of the orphan works problem,” said Public Knowledge President Gigi B. Sohn. “The Office conducted an open and comprehensive process, taking the time to analyze more than 800 comments and conducting roundtable discussions here and in California.” However, Sohn said that Public Knowledge disagrees with the recommendation of the report that users of orphan works be required to pay “reasonable compensation” to the owners of orphan works, should they appear after a diligent search.“ That approach keeps the orphans in the orphanage,” Sohn said.
and another analysis from Digital Copyright Canada:
Skimming the 207 page report: Problem is acknowledged as real, and that the current US copyright law doesn't adequately handle it. Recommended statutory language does not, at first glance, adequately handle uses which may be "commercial" in nature but that do not have a marginal price (monopoly rent, royalty fee, etc). Assumptions of what "reasonable compensation" may claim that there is always a "marginal price" even when none should reasonably exist (peer production, peer distribution, etc).