Attorney Steve® Copyright Essentials: Orphan works explained [contact us for infringement and licensing issues]. Phone (877) 276-5084.
The concept of copyright orphan works is one that has been discussed in the legal world for some time. This issue came to the forefront of legal discussions in the United States when the Copyright Office issued a Notice of Inquiry on the subject in 2006. It was then that the Copyright Office began to consider the possibility of establishing a system that would permit the use of copyright orphan works.
This blog post will discuss the concept of copyright orphan works and the current legal landscape surrounding them. It will also discuss the potential implications that may arise due to the current legal framework.
Orphan Works Overview
Definition of Copyright Orphan Works:
Copyright orphan works are works that are protected by copyright law, but for which the copyright holder cannot be identified or located. This can occur for a variety of reasons, including the death or incapacity of the copyright holder, the lack of a registration with the copyright office, or the inability to locate the copyright holder after a diligent search.
In the U.S., copyright protection lasts for the life of the author plus 70 years. This means that a work can become an orphan after the copyright holder has died, making it impossible to obtain permission to use the work.
Current Legal Landscape In the United States:
The issue of copyright orphan works has been the subject of much legal debate. There are no laws that specifically address the issue, so courts must rely on existing copyright law to determine if the use of an orphaned work is permissible. Generally, the courts have held that the use of an orphaned work without permission is an infringement of the copyright owner's rights.
In 2006, the Copyright Office issued a Notice of Inquiry to determine whether or not a system should be established to allow for the use of copyright orphan works. The inquiry resulted in a report that concluded that a system for the use of orphan works should be established, but that the details of such a system should be left to the discretion of Congress. To date, Congress has not taken any action on the issue.
The lack of a legal system to address the issue of copyright orphan works has significant implications. The lack of a system makes it difficult for those who wish to use orphaned works, as they may be unable to obtain permission to do so. This can present a particular problem for libraries, museums, and archives, which often wish to digitize their collections for public access.
Additionally, it can be difficult for authors, musicians, and filmmakers to make use of orphaned works, as they may not be able to obtain permission to do so.
The issue of copyright orphan works is one that has been discussed in the legal world for some time. While the Copyright Office has issued a report recommending a system to address the issue, Congress has yet to take any action. Without a legal system, it can be difficult for those who wish to use orphaned works to obtain permission to do so. This can have significant implications, particularly for libraries, museums, and archives, as well as authors, musicians, and filmmakers.
Copyright Office. (2006). Notice of Inquiry Concerning Orphan Works.
Federal Register, 71(103), 33,558-33,604.
U.S. Copyright Office. (2006). Report of the Register of Copyrights on Orphan Works.
Library of Congress. U.S. Copyright Office. (2006). Report on Orphan Works. Library of Congress.
U.S. Copyright Office. (2016). Copyright Basics. Library of Congress.
Feist Publications, Inc. v. Rural Telephone Serv. Co., 499 U.S. 340 (1991).
Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519 (2013).