Orphan Works Roundtable: Fair Use of Orphan Works Is Here to Stay
Orphan Works Roundtable: Fair Use of Orphan Works Is Here to Stay
Orphan Works Roundtable: Fair Use of Orphan Works Is Here to Stay

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    What happens when a copyright owner can’t be found?  Suppose you’ve stumbled upon a box containing photographs of historical interest.  If they are old enough to have fallen into the public domain, you’re in luck.  There is no longer a copyright owner to stop you, or anyone else, from using or sharing the photographs.  But if they are still protected by copyright you may need to take the copyright owner into account before you use them.  But what if the copyright owner is nowhere to be found?

    Some things that you might want to do with the photographs, like sticking them up on your walls, do not involve copyright so you do not need permission to do them.  Others, like reproducing them for commentary or criticism may be protected by fair use, which also means that you do not need permission from a rightsholder.  But outside of fair use and other exceptions, you cannot copy, adapt, distribute, or publicly perform or display a copyrighted work without permission.  If your use of the photographs involves one of these things, you need to start searching for the owner of that right.

    Finding copyright owners can be a difficult task.  With today’s long copyright terms, the copyright owner could be an heir generations away from the photographer, or a company many corporate transfers removed from the photographer’s employer.  Because the U.S. no longer requires formalities like labeling, there is no guarantee the photograph was ever registered or even printed with the author’s name.  And if, given these problems, you cannot find the copyright owner and decide to proceed without a license, you risk litigation and high statutory damages.  In the face of that risk, you may decide to not use the photograph at all.

    Each time someone foregoes using a work because its copyright owner can’t be found imposes a small but real cost on society, as we lose access to pieces of history and past creativity.  As the Copyright Office put it in a 2012 Notice of Inquiry, “[t]his outcome is difficult if not impossible to reconcile with the objectives of the copyright system and may unduly restrict access to millions of works that might otherwise be available to the public.”

    The Copyright Office set out to address the orphan works problem at a two-day roundtable that wrapped up on Tuesday.  The roundtable couldn’t include the owners of orphan works—by definition, they cannot be found—which contributed to confusion over what, exactly, orphan works are.  The discussion often focused on particular categories of works, like books or photographs, or on particular ways of using works, like the mass digitization projects that have been found fair use in cases that are up on appeal.

    In fact, any copyrighted work can become an orphaned work, and orphaned works can be used in just as many beneficial ways as other copyrighted works.  The difference is just that nobody is around to grant a license for the uses that require them.  For uses that do not require a license—like fair uses—orphan works are situated like other copyrighted works.  In fact, as PK and the EFF pointed out in joint comments to the Copyright Office on an earlier inquiry, uses of orphaned works are more likely to be fair:  such uses promote access and scholarship, and if the copyright owner cannot be found there is no potential licensing market to harm. 

    Because fair use already protects the uses within its reach from liability, any orphan works problem begins where fair use leaves off.  Fair use is a First Amendment requirement that courts first read into the Copyright Act long before it existed in the statute, and no orphan works legislation could constitutionally remove it.  Some roundtable panelists obscured this important point by instead presenting the issue as a choice between orphan works legislation or fair use, when in fact fair use is always an option for using orphan works, just like any other copyrighted work.

    The Copyright Act’s constitutional purpose is to promote the progress of science and the useful arts, and any solution to the orphan works problem should serve that purpose by increasing the public’s ability to access and use creative works that already exist.  Fair use is an essential way the Copyright Act already promotes access.  And because orphan works legislation can’t constitutionally curtail fair use, fair use of orphan works is here to stay.  As the Copyright Office considers proposing orphan works legislation, it should remember that part of the solution is already in place.