An orphan works affirmative defense

by on February 27, 2006 · 3 comments

I have co-authored a paper on orphan copyrights that is now out from the Michigan Telecommunications and Technology Law Review. You can get it here (PDF). In the article we define the orphan works problem and show how it interferes with the use of creative works. We also describe the causes and costs of the problem, critique four of the leading proposed solutions, and propose a new and practical solution of our own (basically a new orphan works affirmative defense to infringement actions similar to the fair use affirmative defense. If, after a reasonable search in good faith, no copyright holder for a work is found, the work may be used without the user being subject to liability.) The Copyright Office issued its orphan works report earlier this month, and the solution they recommended is similar to ours. Still, Congress has to act before the problem is solved and we hope our paper will be useful in the debate. We would certainly appreciate any comments you might have.

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