Open Access News

This Report addresses the issue of “orphan works,” a term used to describe the situation where the owner of a copyrighted work cannot be identified and located by someone who wishes to make use of the work in a manner that requires permission of the copyright owner. Even where the user has made a reasonably diligent effort to find the owner, if the owner is not found, the user faces uncertainty – she cannot determine whether or under what conditions the owner would permit use....We recommend that the orphan works issue be addressed by an amendment to the Copyright Act’s remedies section.

Recommended Statutory Language....[W]here the infringer: (1) prior to the commencement of the infringement, performed a good faith, reasonably diligent search to locate the owner of the infringed copyright and the infringer did not locate that owner, and (2) throughout the course of the infringement, provided attribution to the author and copyright owner of the work, if possible and as appropriate under the circumstances, the remedies for the infringement shall be limited as set forth [below]....[N]o award for monetary damages...shall be made other than an order requiring the infringer to pay reasonable compensation for the use of the infringed work; provided, however, that where the infringement is performed without any purpose of direct or indirect commercial advantage, such as through the sale of copies or phonorecords of the infringed work, and the infringer ceases the infringement expeditiously after receiving notice of the claim for infringement, no award of monetary relief shall be made....[I]n the case where the infringer has prepared or commenced preparation of a derivative work that recasts, transforms or adapts the infringed work with a significant amount of the infringer’s expression, any injunctive or equitable relief granted by the court shall not restrain the infringer’s continued preparation and use of the derivative work, provided that the infringer makes payment of reasonable compensation to the copyright owner for such preparation and ongoing use and provides attribution to the author and copyright owner in a manner determined by the court as reasonable under the circumstances; and in all other cases, the court may impose injunctive relief to prevent or restrain the infringement in its entirety, but the relief shall to the extent practicable account for any harm that the relief would cause the infringer due to the infringer’s reliance on this section in making the infringing use.

Comment. This is a good solution to a serious problem. I'm suspending judgment on whether there are better solutions. Bottom line: if you want to copy more than fair use allows, and you cannot find the copyright holder even after a diligent effort, then (if this proposal is adopted) you may proceed to do the copying at a lower risk than under current law. If the copyright holder shows up and sues you, you will minimize your damages if you are careful to attribute the work to its author and copyright holder, if you can. You won't have to pay any monetary damages if you made no commercial use of the copies and stop making or using the copies when asked.