Orphan works

Orphan works is a term used to describe the situation where a copyright owner cannot be identified and/or located by someone who is seeking permission to use the work. In the most common situation, the inability of a potential user of such a work to locate the copyright holder produces uncertainty about the use of the work, since it is possible, however remotely so, that a copyright holder or their heir may surface after the use has begun and bring an infringement action, leading to the possibility of compensatory damages against the user of the work. In the United States, when the use of an orphan work is not subject to a strong fair use claim, use of the work effectively stops before it even starts.

Although the problem of orphan works is most acute in the United States, the issue is global, particularly as regards photographs, silent films, and works by creators who are not famous regardless of the type of work. Large repositories of orphaned works are frequently held by libraries, museums and other collections-holders, and they may be viewed on-site; however, they are not dispersed or permitted for copying and publishing out of fear of an infringement suit. It is thought that the uncertainty surrounding the dispersal and use of orphan works seriously inhibits the public good that would otherwise result from their use, if substantial protections were afforded.

Canada and the United Kingdom have enacted relatively narrow laws in attempts to free-up use of its orphan works, but various economic disincentives built into the laws have meant that few orphaned works have been freed for use. The United State's Copyright Term Extension Act of 1998 enacted minor protections for users of orphan works, but they were not enough to induce significant dispersion and usages. In 2005, at the urging of numerous representatives of the United States Congress, the U.S. Copyright Office studied the issue of orphan works, and strongly concluded that substantial legislative action was warranted to free orphan works beyond the often uncertain bounds of fair use, to include protection from damages in any infringement suit that might result from use of an orphaned work. The recommendations have yet to be acted on, although courts have already effectively ruled to afford protection from compensatory damages resulting from use of orphan works, allowing the remedy of only a nominative license fee when the user had first demonstrated reasonable diligence to locate the copyright holder.