Whenever a person creates a piece of work that is copyrightable, like a song, book, or poem, they automatically own the copyright to the work. Using that piece of work without the permission of the owner of the work is called infringement. If the copyright holder for a work is unable to be found, that work is referred to as an orphan work. Even if the owner cannot be located at the time of the usage, it is still protected by copyright law. If someone uses an orphan work without prior permission, the copyright owner has the right to sue for infringement.
The Orphan Works Issue
A person who wants to use an orphan work can’t obtain permission to do so when the owner can’t be located. The person then has two options: either not use the work at all or use it while understanding that the owner might later come up and file a copyright infringement lawsuit. The person may then have to pay damages for using the work without a license (a document that grants permission to use a work), even though they tried to locate the owner and couldn’t. If you own a creative piece of work, a simple way to solve the orphan works problem is to register your work for a copyright. Although copyright exists from the time of registration and you are not legally bound to register a copyright, doing so not only helps you enforce your rights better but also means that the work can be traced back to you should anyone wish to license it officially.
Orphan Work Law
Copyright of any creative content is covered by the Copyright Act of 1976. Even though there are no separate legislations specifically catering to orphan works, the U.S Copyright Office has issued a report in 2015 titled ‘Orphan Works and Mass Digitization’, which called for amendments to the act to address orphan issues. The report further recommended a law that limited the liability for the use of an orphan work if the person had proof to show that they had genuinely tried to locate the owner before using the work. The report also suggested a system where a person who wanted to use an orphan work would need to file a notice of use with the Copyright Office so that there would be a record of the search and the use of that work. The creation of such a system could lead to the creation of an orphan works registry or database that would allow creators to determine if their work has been used and that way, receive due payment for a license.
The report from 2015 addresses the issue of mass digitization as well, which was seen in the Authors Guild, Inc. v. Google, Inc. 2015 court case. A massive effort was undertaken by Google to bring millions of books into digital format and make them available in a searchable format online. However, Google got sued by The Authors Guild, accusing the tech giant of infringement on behalf of the authors: with Google finally paying penalties.