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"Orphan Works" are copyrighted works—books, music, records, films, etc—whose owner cannot be located. Works can become "orphaned" for a number of reasons: the owner did not register the work, the owner sold rights in the work and did not register the transfer, the owner died and his heirs cannot be found ... the list goes on. This becomes a problem when a future creator wants to use that work—no future creator is willing to use the orphan work for fear that he/she will have to pay a huge amount of money in damages if the owner emerges.
Public Knowledge's Position
Since 2005, efforts have been underway to solve the Orphan Works problem. Public Knowledge and many other organizations have proposed that the law should allow use of an orphan work if the user searched for the copyright owner in good faith and with reasonable diligence but failed to find the owner to ask permission. The copyright office recommends a similar solution, differing only in how the remedies would be limited. Groups of copyright holders, mainly photographers, illustrators, graphic artists, and textile designers, have opposed both specific aspects of our proposals and the Copyright Office recommendations and any attempts to permit use without consent.
Public Knowledge and other proponents of an orphan works policy are hopeful that, working with other copyright holders, we can work toward a common policy goal of making sure orphan owners are found.
Public Knowledge has made the following policy proposals in order to facilitate the use of orphan works:
- Users should be able to use the work after a reasonably diligent search for the owner.
- A search would be reasonably diligent if it was conducted in good faith with resources and technology reasonably available to the user.
- Reasonableness of the search would have to be determined on a case-by-case basis.
- Industry groups could establish a guideline of best practices for conducting searches.
- The user should provide attribution.
- The user would have to provide attribution to the owner to the extent possible based on the information obtained during the course of the reasonable search.
- The attribution information would have to be updated if more information became available to the user.
- If the owner emerges after the use has commenced, the user's liability should be limited.
- The user would only be required to pay to an emerging owner a fee capped at a maximum amount; for example: $200.
- A court would not give an injunction against the use of the work.
- In case of web-based uses, the user would not be required to take down the work.
- The owner would not be entitled to attorney's fees or statutory damages.
- The user should be allowed to continue with the use of the work.
- Uses that commenced before the owner emerged should be allowed to continue. For example, if an author used certain orphan illustrations in his book, he could continue to use these illustrations after the owner emerged. The use would include subsequent editions of the book.
- New uses would require permission from the owner. In the above example, the author would not be able to use the same illustrations in another book.
Public Knowledge believes that the above proposal would facilitate greater uses of orphan works. The capped fee due to an emerging owner would on the one hand acknowledge the owner's right to compensation, and on the other, reduce the fear of huge damages that currently discourages use of orphan works. Many works which have tremendous historical and cultural value would emerge out of the woodwork and the public would be benefited.
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