An Orphan Works Affirmative Defense to Copyright Infringement Actions

The Regulation

• The Copyright Office has submitted a report to Congress outlining the extent of the orphan works problem and recommending a legislative solution.
• Orphan works are creative works the authors of which cannot be ascertained. If a work's copyright owner cannot be found to secure their permission to use the work, then no one will ultimately use the work lest they risk liability for copyright infringement.

Our Findings

• The orphan works problem is real and it is preventing a large portion of existing literary, artistic, and other works from being preserved or used in derivative works.
• Several solutions to this problem have been suggested, but most proposals are cumbersome or incompatible with political and legal reality.

Recommendations

• We propose 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.
• As with the fair use statute, there should be a codified non-exclusive list of factors that a court will consider in determining whether the user-defendant carried out a reasonable search in good faith.