It’s the Hard Knock Life for Orphan Works

by on May 12, 2005

“Orphan works” are artistic works still under copyright but whose owner cannot be identified. Because the owner can’t be found, these copyrighted works are not able to be used and society loses out on their creative utilization. The Copyright Office has a proceeding underway on how to solve the orphan works problem. In comments I and Rudy Rouhana, a law student at Catholic University, filed earlier this week, we propose a way that the market can be the Daddy Warbucks for orphan works.

Competing copyright registries, similar to that for Internet domain names, could help provide incentives for the registration of works, especially digital works. What is needed is a registry system that conforms to the wide range of uses and values in copyright, ubiquity of copyrighted works, and easy registration process. A compulsory registration requirement would go against the no formalities requirement of the Berne Convention for the Protection of Literary and Artistic Works. However, this treaty does not preclude private registries. Private registries that are not compulsory but have legal recognition might provide the proper incentives for creators to register their works, thus diminishing the future instances of orphan works.

How would a market solution work? First, there would have to be legal recognition of private registrars, who would then adopt the current registration procedures of the Copyright Office. With guidelines for registration clearly enumerated, private copyright registrars can begin to develop the basic technical infrastructure to store and exchange information regarding registered works. This back-end infrastructure, with finite, defined fields that associate ownership and contact information to created works, will have the capacity to scale according to the pace of creation.

The front-end will accommodate the various forms of creative works and the constantly evolving methods of publication. Rather than checking-in a copy of a created work, the registrars can extend their services to the edges where publication occurs. By turning the database inside-out existing digital works can become registered and new creations can be registered in an automated fashion as they are created. This is accomplished by registrars delivering the necessary infrastructure to publishers and allowing the state-of-the-art publication systems to become the front-end.

There were some interesting comments filed by other parties. Check out the comments filed by Save the Music and Creative Commons.

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