An Orphan Works Affirmative Defense to Copyright Infringement Actions

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.

Keywords: copyright, orphan works, intellectual property

JEL Classification: K39, Q34