When the rightsholder for a potentially copyrighted work cannot be identified and located, any use of it that would require a license creates significant legal risk. Such works are called “orphan works.” Effectively, they are frozen in a legal form of suspended animation until enough time elapses that they finally fall into the public domain.
This problem has been one of the few areas in copyright law where statutory reform seemed possible. Now legislation has been introduced in the House of Representatives and is slated for subcommittee mark-up next week. The bill is based on the report and recommendations released earlier this year by the Copyright Office, but actually improves upon that proposal somewhat (see summaries by Subcommittee Chairman Lamar Smith, the bill’s sponsor, and by Public Knowledge). In general, the legislation limits damages and injunctive relief in an infringement action against a content user who performed an unsuccessful “reasonably diligent search” to find a rightsholder.
How to account for this good news? Well, large rightsholders with vigilant management of their intellectual property portfolios typically don’t let their copyrights sink into orphanhood. And they want the right to use orphan works in their own content. So there is little organized opposition to this particular liberalizing amendment to copyright law. Unlike some other all-party negotiations over copyright law, I understand these talks were fairly harmonious. Hopefully, the bill will move through Congress before the end of the session.