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Orphan Works and the Search for Rightsholders: Who Participates in a 'Diligent Search' under Present and Proposed Regimes?

Berkeley Digital Library Copyright Project, White Paper No. 4

23 Pages Posted: 31 Jan 2013 Last revised: 21 Jul 2017

David R. Hansen

Duke University Libraries; University of North Carolina School of Law; University of California, Berkeley - School of Law

Gwen Hinze

University of California, Berkeley - School of Law

Jennifer M. Urban

University of California, Berkeley - School of Law

Date Written: January 28, 2013

Abstract

Over the past several years, policy makers and private actors have developed an evolving set of approaches for addressing the orphan works problem — a problem that arises when “the owner of a copyrighted work 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,” preventing follow-on uses of works. These approaches usually attempt to address the orphan works problem by employing some threshold mechanism to differentiate true orphan works, to which the proposed solutions would apply, from non-orphaned copyrighted works. Satisfying a “reasonably diligent search” is one well-known formulation by which users can designate works as orphaned and therefore subject to a proposed solution, though — as this paper points out — alternative approaches certainly exist. Regardless of the specific formulation, the search for rightsholders (or conversely, the confirmation that no rightsholder can be located) is an integral component of almost every orphan works proposal. This paper examines in detail the core schemes for identifying rightsholders among the leading orphan works regimes and proposals. Although these schemes differ across many variables, three factors predominate: (1) who is expected to participate in the search process, (2) the nature and extent of the required search generally; and (3) specifically what types of resources, tools, registries or other information-sharing mechanisms are required or allowed.

This paper compares existing proposals’ approaches with respect to the first factor: who participates in a search? A subsequent paper will focus on the second and third factors.

Keywords: orphan works, extended collective licensing, ECL, mass digitization, diligent search

Suggested Citation

Hansen, David R. and Hinze, Gwen and Urban, Jennifer M., Orphan Works and the Search for Rightsholders: Who Participates in a 'Diligent Search' under Present and Proposed Regimes? (January 28, 2013). Berkeley Digital Library Copyright Project, White Paper No. 4. Available at SSRN: https://ssrn.com/abstract=2208163

David Hansen (Contact Author)

Duke University Libraries ( email )

100 Fuqua Drive
Durham, NC 27708-0204
United States

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
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University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
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G. Hinze

University of California, Berkeley - School of Law ( email )

Boalt Hall
Berkeley, CA 94720-7200
United States

Jennifer Urban

University of California, Berkeley - School of Law ( email )

342 Boalt Hall, North Addition
Berkeley, CA 94720-7200
United States
(510) 642-7338 (Phone)

HOME PAGE: http://www.samuelsonclinic.org

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