Abstract

http://ssrn.com/abstract=942052
 
 

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An Orphan Works Affirmative Defense to Copyright Infringement Actions


Jerry Brito


George Mason University - Mercatus Center

Bridget C.E. Dooling


affiliation not provided to SSRN


Michigan Telecommunications and Technology Law Review, Vol. 12, p. 75, 2005

Abstract:     
The orphan works problem in copyright occurs when a scholar, artist, or other creator wishes to use part of an existing work in her own work but cannot find the existing work's owner in order to ask permission. Today many works go unused for fear of litigation. This has become such a serious problem that the Copyright Office recently concluded a proceeding to investigate possible solutions. This paper explains the full extent of the orphan works problem and proposes a novel solution that is practical. We also examine and critique other leading proposed solutions that we conclude are unworkable.

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.

Number of Pages in PDF File: 39

Keywords: copyright, orphan works, intellectual property

JEL Classification: K39, Q34

Accepted Paper Series


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Date posted: November 3, 2006  

Suggested Citation

Brito, Jerry and Dooling, Bridget C.E., An Orphan Works Affirmative Defense to Copyright Infringement Actions. Michigan Telecommunications and Technology Law Review, Vol. 12, p. 75, 2005. Available at SSRN: http://ssrn.com/abstract=942052

Contact Information

Jerry Brito (Contact Author)
George Mason University - Mercatus Center ( email )
3301 N. Fairfax Dr.
Ste. 450
Arlington, VA 22201-4433
United States
HOME PAGE: http://www.mercatus.org
Bridget C.E. Dooling
affiliation not provided to SSRN ( email )
No Address Available
Feedback to SSRN


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