An orphan work is an original work of authorship whose author cannot be located or identified when someone is seeking permission to use it. For example, say you want to reprint a photograph in a book, but you can’t identify or locate the photographer, and you don’t know where to go for permission. Should you still use it? Have you really searched hard enough for the rights holder?
The copyright office issued a Report on Orphan Works in 2006 that recommended legislation, but none was passed. Since then, orphan work issues have arisen with increasing frequency in the mass digitization context. For example, in 2011 Judge Denny Chin of the Southern District of New York rejected a settlement in Authors Guild v. Google, Inc., in large part because the proposed deal would have effectively granted Google a license to scan and display orphan works without permission unless the author stepped forward to “opt-out.” Judge Chin felt that a scheme that bold needed to come from the legislature, not from the courts.
Among the issues now to be considered by the Copyright Office are:
The need for orphan works legislation in light of recent legal and technological developments;
What constitutes a good faith “reasonably diligent search” for an author;
Remedies and procedures regarding orphan works;
A possible collective licensing system.
The Copyright Office will hold a series of public round table discussions on these topics in March. Written comments are due April 14, 2014.