Is Your Work an Orphan? (Part One)

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In January, the United States Copyright Office released its report (PDF) on a special category of copyrighted materials known as "Orphan Works".

As part of the report, the copyright office proposed making significant changes to the existing law, changes that, if enacted, will have an effect on all copyright holders, including those that are very much alive and have a strong interest in their work. even if they aren’t in the United States.

Thus, while the bill based upon this report is still making its way through Congress, it’s worth taking a moment to look at the changes and find out if our hard work could, some day, wind up in a copyright orphanage.

The Orphan Work Problem 

An orphan work is simply a work that, while believed to be protected by copyright law, does not have an owner that can be located. Anyone wishing to reuse a such a work has no one to ask permission from or work out an arrangement with and, thus, has no way to clear the rights of a piece before using it. This puts the piece in a kind of limbo where no one can use or reproduce the work for fear of being sued and no copyright holder is benefiting from it. 

Supporters of an orphan works provision say that this runs counter to the ideals of copyright law, which, according to the constitution is supposed "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." In short, orphan works do nothing to promote the advancement of arts and offer no benefits to the holders of their copyrights.

It was with this problem in mind that the Copyright Office set to draft new rules to free up orphan works for use by, theoretically, putting much of that uncertainty to rest.

However, in doing so, the Copyright Office may have, unintentionally, created new dangers that copyright holders need to be aware of.

How Does a Work Become an Orphan? 

According to the report, a work becomes an orphan when the copyright holder to it can not be found, even after someone wishing to reuse the work has made a "reasonably diligent effort" to locate the individual or company that owns it. It can be any kind of work, including text, images, audio, video and anything else covered by copyright law, it can be any age, from decades to just minutes old, and it can be published or unpublished, for example, a letter or a diary.

What constitutes a "reasonably diligent effort" according to the report varies wildly depending on the nature of the work, the intended use of it, the nature of the person or organization wishing to use it and the information available on it. The report, nor the bills based upon it, set hard and fast rules for what constitutes such a search but did throw out some ideas for things that should be practically standard, including Internet searches and a search of the Copyright Office database.

The theory behind this is that a work will not become an orphan until every "reasonable" avenue of search has been exhausted. On some works, such as a dusty black and white photography if your grandfather’s attic, those avenues would be limited but others, such as a poem found on the Web, they would be significantly greater.

Nonetheless, this has lead many to fear that immoral individuals will abuse the law by conducting superficial searches with no real desire to find the copyright holder and, after failing to do so, will exploit its status as an orphan work. While much of that fear seems to be unfounded , given what is at stake, the concern is very understandable and it needs to be addressed.

What Happens When a Work is Orphaned? 

When a work is orphaned, one’s copyright protection of that work doesn’t simply disappear. However, many elements of that protection are put on hold. Once a work is orphaned, someone wishing to use that work is free to do so, for any purpose, including commercial use and to make derivative works, so long as they have performed the above mentioned search and provided as much attribution as possible for the work (including a mention that it is an "orphan work" in the event no information is available).

Should the copyright holder reappear later. he or she is no longer entitled to actual damages, statutory attorney fees so long as the infringement is stopped expeditiously once the copyright holder becomes known. The only award that a copyright holder is guaranteed in such a situation is "reasonable compensation", an amount which would be based on market value for similar works being used in a similar fashion.

However, even that remedy would be limited to cases where the work was used for commercial gain, if an orphan work was used for non-commercial reasons, there would effectively be no opportunity to collect damages of any variety.

Should the user create a derivative work based upon the original with a "significant amount of the infringer’s expression," the report states that the court shall not prevent the infringer from continuing to use the work, provided that he makes reasonable compensation for the continued use and it is adequately attributed. All other cases, where the nature of use is not derivative, the court may impose an injunction preventing the continued use, but only to the extent that it is "practable". An example of that mentioned in a report was a case where an orphan work was used in a published book and all unsold copies of the book were allowed to be shipped but new copies printed had to omit the work.

Clearly though, any work that falls under the orphan works clause loses many of its rights and copyright holders have a vested interest in not letting that happen. Since the bill would be retroactive, it’s worth taking a few moments, especially now while the bill is making it’s way through Congress, to work on a plan to avoid stepping into the orphan works trap.

(Coming Tomorrow: Part two of this work will offer advice on how to avoid having a work identified as an orphan, take a more in-depth look at the controversy behind the law and how it might apply to plagiarism matters.) 

[tags]Plagiarism, Content Theft, Copyright Law, Orphan Works, Copyright[/tags] 

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7 COMMENTS

  1. I'm glad to help but it is worth noting that this is actually an old post from the first round. I've got articles aimed at the new legislation elsewhere on the site.Let me know if you need any help finding them! You run a great site.

  2. I'm glad to help but it is worth noting that this is actually an old post from the first round. I've got articles aimed at the new legislation elsewhere on the site.

    Let me know if you need any help finding them! You run a great site.

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