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A Golden Opportunity for Orphan Works

Progress Snapshot
Release 2.7 March 2006

by Patrick Ross*

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All parties in the debate over intellectual property protection have been presented with a golden opportunity by the U.S. Copyright Office. A House oversight hearing Wednesday on the Office's "Report on Orphan Works [1]" demonstrated a very real possibility for property rights advocates and free culture advocates to work together in righting a copyright wrong. In the two months since the release of the orphan works report, no individual or party has stepped forward endorsing the plan in its entirety, but it has on the whole been widely praised, and that praise was evident at the hearing Lamar Smith and Howard Berman held in the House Judiciary Intellectual Property, Courts and Internet Subcommittee April 8th. The witnesses agreed with Smith that 80 to 90 percent of the Copyright Office's proposed statutory language has little or no opposition. Given the rancor that has surrounded the intellectual property debate on Capitol Hill since the last major copyright law in 1998, it would be a shame if a few minor differences of opinion prevented a true effort at consensus legislation that would benefit both artists and consumers.

Of the more than 850 comments received by the Copyright Office, there was one item of agreement; artistic works exist that are difficult to use because their owners cannot be found. There is no easy answer to this problem -- no single solution could perfectly address every issue of photographers, songwriters, movie producers, authors, sculptors, etc. -- but the Copyright Office report strikes a very reasonable balance.

Jule Sigall, associate register for policy and international affairs, summed up the Copyright Office's approach for the subcommittee -- if a potential user performs a reasonable search for the copyright owner, her liability should be limited if the owner surfaces. To quote the report: "[i]f the user has performed a reasonably diligent search for the copyright owner but is unable to locate that owner, then that user should enjoy a benefit of limitation on the remedies that a copyright owner could obtain against him if the owner showed up at a later date and sued for infringement. The limitations on remedies should give the user more certainty that his efforts to make the work available to the public will not result in significant monetary damage or an injunction that would disrupt the efforts the user has made in reliance on the orphan works designation. At the same time, the owner should in most cases be able to recover compensation for the use of his work, prevent new uses of the work by the user, and, where possible, receive attribution for his work." (pp. 95-96)

The three other witnesses Wednesday had questions around the edges of that proposal. So did some of the subcommittee members. But even Zoe Lofgren, who has legislation that backs a mandatory registry that was not adopted by the Copyright Office, said "we've made some progress today." David Trust, CEO of the Professional Photographers of America, discussed the very real problems photographers have with infringement, and Sigall -- while noting much of their concerns are not orphan-works related -- said the Copyright Office was supportive of some of Trust's proposed changes, including a delay in implementation to allow industrywide registry efforts. That echoed a concern raised by Berman. Maria Pallante-Hyun, associate general counsel for the Guggenheim Museum, had concerns that her institution might not always fit into the noncommercial exception carved out by the Copyright Office to limit damages, but Smith assured her that legislation would protect her.

All of the witnesses present Wednesday promised Smith that they would aim to have consensus on statutory language by the end of the month. Of course, Adler and Trust noted that there were other stakeholders. Smith and Berman could have found a dozen other witnesses who would have had two dozen other gripes about the Copyright Office proposal. But after being pored over by numerous interested parties on and off the Hill this year, the report's general overall philosophical approach has found very little vocal resistance. That doesn't mean there isn't resistance out there, however. Any legislative effort that seeks to find a balance between two parties will always have provisions opposed by those parties. Any limit on damages could draw the ire of copyright purists. Any burdens placed on end-users could cause an affront for advocates who put "culture" as they define it before the rights of artists.

But the orphan works issue is a clear case of the perfect being the enemy of the good. The orphan works problem has been growing larger every year, as more and more works are created. All of us will benefit by a solution to the problem, however imperfect it might be. And it's entirely possible that if former antagonists from the battles over the Digital Millennium Copyright Act and more recent legislative struggles work together on the crafting and passage of orphan works legislation, they might find that the other side to be a bit less demonic. And perhaps they might find that discussions over other copyright issues that are less easily resolved could involve dialogue that is more substantive and less heated.

Okay, maybe that's hoping for too much. But everyone should at least try to work together to tackle the orphan works problem in this Congress, using the Copyright Office report as a template.

* Patrick Ross is a senior fellow and vice president for communications and external affairs with The Progress & Freedom Foundation. The views expressed here are his own and not necessarily the views of PFF, its fellows, staff or directors.

  1. U.S Copyright Office – Orphan Works (





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