Abandoning the Orphans: An Open Access Approach to Hostage Works
Lydia Pallas Loren
Lewis & Clark Law School
May 2, 2012
Berkeley Technology Law Journal, Forthcoming
Lewis & Clark Law School Legal Studies Research Paper No. 2012-10
The lengthening of the duration of copyright protection as well as the elimination of the requirements for copyright registration, copyright notices on published copies, and renewal registrations, all have contributed to the rise of so-called orphan works: works that remain subject to copyright law but whose owners 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. In this article I examine one of the root causes of the inability to address the orphan work problem: the metaphor of the 'orphan' itself. Potential alternative metaphors that could be used to identify these works, based on various doctrines in real property including adverse possession and the doctrine of waste, provide interesting insights but ultimately are unsatisfactory. Instead I propose that these works should not be viewed as orphans, but rather as 'hostages' - constrained in their movement by the restricting combination of the set of rules established by copyright law and the absence of the owner who could release the works from what binds them in their confinement.
The hostage metaphor leads to a clearer recognition that what is needed is not a stand in for the 'parent' of these orphans, rather what is called for is an incentive for responsible parties to operate as 'special forces' to free the hostages. I propose a limited immunity for entities that act as 'special forces' in freeing the hostages. The immunity should be available when an entity non-negligently identifies a work as a hostage work and provides an open access copy of that work with the hostage-freeing information attached in human and machine readable form. I also suggest that courts should employ equitable doctrines to limit the infringement remedies available against derivative work creators which would discourage copyright owners from delaying in making their presence and availability known. I offer this open access model as a way forward that could be implemented either legislatively or judicially, through a combination of the ever-malleable fair use balancing test and a variety of equitable doctrines. Adopting this approach could facilitate the development and dissemination of reliable information, increase the public benefit through greater access to hostage works, and encourage calculated risk-taking by derivative work makers. Such a system would provide appropriate protection for copyright owners while at the same time significantly reduce a form of waste created by the hostage work problem.
Number of Pages in PDF File: 43
Keywords: copyright, orphan works, open access
JEL Classification: O34, K10Accepted Paper Series
Date posted: May 2, 2012 ; Last revised: May 18, 2012
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