Over 700 separate comments were submitted to the Copyright Office by diverse interested parties ranging from individuals, to industry organizations, to corporations. We selected and reviewed comments which included specific proposals or suggestions for addressing the problem of orphan works. The following survey attempts to summarize the various proposals by examining a set of characteristics, which have been grouped as follows:
Adapated with the help of Jennifer Urban's QUICK-REFERENCE SUMMARY CHART, Stanford Intellectual Property Clinic, 2005.
A. Designating a work as an Orphan
In general, the organizations use one or a combination of the following methods for determining whether a work has been orphaned.
1. Registration / Directory / Listing: A few proposals suggest a voluntary or mandatory system for copyright holders to submit information (e.g., formal registration, contact info) to the Copyright Office which would assist potential users of the work in locating the owner. While a registry could provide a useful tool, most proposals suggest no registration system or one that is voluntary. These issues were thoroughly aired in the course of passing the Copyright Act of 1976 and the Copyright Renewal Act of 1992
See e.g., MIT Libraries 515 (proposed a voluntary registration plus intent to use listing. They suggested a possible 28 years of automatic exclusivity before a work is eligible for orphan status.) Also see, e.g. Save the Music/ Creative Commons 0643 (required registration within 25 years of publication and a mandatory renewal 50 years into the term.
For criticism on implementing any new registration requirements see Stephen P. Morris/Professional Photographers of America 638
2. Reasonable Efforts: Most of proposals agreed on a system describing the minimum search efforts a potential user must undertake in attempting to locate the copyright holder before a work can be considered orphaned.
See e.g., American University 595, American Film Heritage 0520, Cornell University Library 569, Association of American Publishers 605, Getty Trust 610, and the Recording Industry Association of America 687.
3. Case-by-Case: Proposals which require a case-by-case investigation by an authoritative agency or organization in order to determine whether a work has been orphaned or reasonable efforts made. Similar to the Canadian system of orphan works adjudication. See e.g. Graphic Artists Guild 547, Professional Photographers of America 638, Kernochan Center for Law and Media 666,
4. Categorical: The majority proposals agree with a method for determining orphan status which, upon fulfillment of certain requirements, define the work as orphaned without an individual authority review. This is unlike the Canadian Orphan Works model.
See e.g., Library Copyright Alliance 658, Google 681, Copyright Clearance Center 691,Research on your own:
The Copyright Office has a plethora of legislative documents and legislative history on amendments to the Copyright Act of 1976.
The Comment by Glushko-Samuelson IP Law Clinic of American University's Washington School of Law had the most supporters amongst the first round of comments. The proposal was the most inclusive approach and self-described as "center of the universe" in ideology and construction.
Limitations on Liability: Solutions which limit the remedies available to a copyright owner who surfaces later (e.g., no injunctive relief, capped or statutory damages) Most proposals agree that by limiting the remedies an owner can collect from a user who does in fact conduct a reasonable efforts search, the more likely users will use the orphan works system. If the damages are not capped, the resulting uncertainty and potential risk exposure would drive users away from the system. This type of solution limits the remedies available to a copyright owner who surfaces later (e.g., no injunctive relief, capped or statutory damages)
See eg., American University 595, Duke University CPD 596, Library Copyright Alliance 658, MPAA 646, RIAA 0687.
License: Proposals which grant the user a default, compulsory, or statutory license to use the work, once it has been declared an orphan. In some cases, payment of a licensing fee or royalties is required.
See eg., Graphic Artists Guild 547, International Documentary Association 686, American Federation of Musicians 669
C. Subject Matter
Subject matter describes the types of works which are eligible for orphan status, and the duration of orphan status.
Published Works Only: A couple proposals endorsed a system which proposed that only published works be eligible for orphan status. Unpublished works cannot become orphaned. These proposals argue that records of published works are more easily traceable than unpublished works, and a user would have a realistic chance of either locating the last recorded copyright owner or determining the genuine status of the work.
See e.g., Graphic Artists Guild 547, Stanford University Libraries 457
Single Use or Forever: Indicates whether a work is considered an orphan only for one use (i.e., all subsequent users must also go through the orphan procedure; See Directors Guild of America 621) or whether the work, once orphaned, remains in that status permanently (i.e., future users need not repeat the first user’s procedure for having a work declared an orphan See Public Knowledge 629).
D. Other Characteristics
Other options which did not fit into the above groups.
Limited Beneficiaries: Proposals which benefit only a limited group of potential users (e.g., libraries, users of musical works, educational/research users).
Affirms Current Law: Solutions which argue that no changes to current law are necessary for dealing with the question of orphan works.