Negotiating the Unknown: A Compulsory Licensing Solution to the Orphan Works Problem

Abstract

The artistic heritage of the United States is rotting away in "the bowels of a few great libraries," providing value to no one. If the owner of a work’s copyrights is unknown or cannot be located, then the work cannot be licensed for use in new creative projects or preserved in a digital form, and is often unavailable to the public. To combat this "orphan works" problem, the Copyright Office has proposed a statutory limitation on infringement liability for users of orphan works who have completed a "reasonably diligent" search for the work’s owner. However, this limited liability approach provides only a half-measure of the legislative medicine needed to cure the orphan works problem. This Article argues that a compulsory licensing system is needed as well. Among other benefits, a compulsory license for orphan works would help minimize search, transaction, and administrative costs for users, incentivize investment in orphan works projects, and provide the flexibility necessary to bring major archival and restoration projects up to scale.

Keywords: copyright, licensing, compulsory, orphan works, piracy, Internet, regulation, legislation, international, infringement, Berne Convention, entertainment, art, photography, visual art