Solving the Orphan Works Problem for the United States

Over the last decade, the problem of orphan works — i.e., copyrighted works whose owners cannot be located by a reasonably diligent search — has come sharply into focus as libraries, archives, and other large repositories of copyrighted works have sought to digitize and make available their collections online. Although this problem is certainly not limited to digital libraries, it has proven especially challenging for these organizations because they hold diverse collections that include millions of books, articles, letters, photographs, home movies, films, and other types of works. Many items come with a complex, unknown, and (often) unknowable history of copyright ownership. Because U.S. copyright law provides for both strong injunctive relief and monetary damages (in the form of statutory damages of up to $150,000 per work infringed), organizations that cannot obtain permission often do not make their collections available at all.

In October 2012, the U.S. Copyright Office initiated a new study of orphan works and mass digitization, and has indicated that it is a high-priority policy issue for the office. That study, and the work that preceded it, has highlighted the wide array of perspectives about why and how to address the orphan works problem. In this article we present evidence that the orphan works problem is very real and that it inhibits many socially valuable uses of copyrighted works by libraries, archives, museums and other memory institutions. We then canvas the array of potential solutions, and ultimately conclude that fair use, combined with the Copyright Office’s remedy limitation approach, are better approaches for addressing this problem in the United States than alternatives proposed elsewhere. Finally, we explore future-looking changes, such as the reintroduction of copyright formalities and the development of registries, that would reduce the number of orphan works in the future.