October 25, 2012
Intellectual Property Alerts

U.S. Copyright Office Seeks Feedback Regarding "Orphan Works"
by Cyrus Wadia

The U.S. Copyright Office is seeking public feedback regarding "Orphan Works" in order to advise Congress on possible legislation. Orphan works are copyrighted works – books, movies, music, etc. – for which the owner cannot be identified or located. A major issue with orphan works is that potential users of such works are afraid to do so for fear that the author will come out of the woodwork and sue for damages – what the Copyright Office calls “a frustration, a liability risk, and a major cause of gridlock in the digital marketplace.”
The Copyright Office seeks comments regarding the current state of play for orphan works, including what has changed in the legal and business environments that might be relevant to a resolution, orphan works in the context of mass digitization, and what additional legislative, regulatory, or voluntary solutions deserve deliberation. The Copyright Office has posed the two following questions: 

  1.  With respect to the occasional or isolated use of an orphan work, how has the legal landscape or legal thinking evolved in the past four years? 
  2.  How should mass digitization be defined, what are the goals and what, therefore, is an appropriate legal framework that is fair to authors and copyright owners as well as good faith users? What other possible solutions for mass digitization projects should be considered?

In responding to these questions, a party may wish to discuss a number of relevant topics, including but not limited to: the merits of limiting remedies; the interplay between orphan works and fair use, Sections 108 and 121 of the Copyright Act, or other exceptions and limitations; the role of licensing; the types of orphan works that should be implicated; the types of users who should benefit; the practical or legal hurdles to forming or utilizing registries; international implications; and the relative importance of the Register’s plans to improve the quality and search ability of Copyright Office records.
All comments are due by 5:00 p.m. EST on January 4, 2013 and should be submitted electronically here.
**Mr. Wadia recognizes Jewelyn Mendoza's assistance in the preparation of this alert.

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