Why is the Copyright Office asking for comments on orphan works?
Congress has asked the Copyright Office to determine whether concerns about orphan works merit a new regulation or law. As part of that inquiry, the CO has issued what's called a Notice of Inquiry, in which any member of the public is welcome to submit their views on this issue. The CO is required to take into account all the submissions it receives when it gives Congress its final recommendation.
What is an orphan work?
One of the questions the CO wants answered is how to define an orphan work. Right now the precise definition is up for grabs, but broadly speaking, orphan works are works where it is extremely difficult and expensive to find the person who owns the copyright in the work. They can be any type of work: books, films, art, music, type fonts, house designs -- anything that can be copyrighted, can be orphaned if the rights holder abandons it by ceasing to make clear their ownership of the work.
The Notice of Inquiry asks specific questions. What if I don't have answers to all those questions?
Just answer the ones you feel comfortable answering. Question one asks you to describe the problems you face. Question two asks who will determine what an orphan work is: Will it be a "case by case" determination, the way "fair use" currently works, where if someone challenges the use of the work, a court takes several factors into account in determining if it really was abandoned, or will we have a formal approach, where you must follow certain procedures to find the owner, but if you exhaust those options you will be immune from being sued.
The third question asks whether there should be a mandatory "time- after- publication" element to the determination. Question four asks whether unpublished works can achieve orphaned status. Question Five asks what happens once a work is orphaned-does it enter the public domain permanently, is there a right for an author to reclaim it, or should an alternative regime be imposed? Finally, the sixth question asks how any potential changes might implicate our international treaty obligations, particularly the Berne Convention.
What should I include in my comments?
Tell your story! The most important thing the copyright office needs to hear is that the orphan works problem is really stifling your creativity, and preventing you from using and disseminating works because it was too expensive to find their owner. Give specific examples of where the possibility of being sued prevented you from using a work even when you thought it would probably be okay under the fair use defense, or where you'd have been willing to pay for the work if you could find the right person to pay. Even if you don't want to propose a specific solution, you can help them understand the real- life implications of the orphan works problem.
You can find examples of stories that people submitted here.
How does this process work and how do I submit my comments?
Freeculture.org has made it really simple to submit your comments here. Comments are due by 5PM EST on March 25. All the comments submitted will be posted at the copyright office website for everyone to read. Then, we will all have until 5PM on May 9 to submit another round of "reply comments" that respond to those submitted in the first round.
Please cc us on your comments at: comments@eldred.cc. We'll try to post as many of your stories on this site as we can.
How does this fit into the other Phases on this site?
We believe the public domain is a rich cultural resource worth saving. Phase I -- Eldred v. Ashcroft -- was about preventing the perpetual extension of copyright that keeps copyrighted works from ever entering the public domain. Phase II -- The Public Domain Enhancement Act -- is about changing the law so that after 50 years the burden shifts onto copyright owners to pay $1 to keep their work from entering the public domain. Under this system, as long as you knew a work was over 50 years old, and wasn't on a list of works where the owner had paid the nominal fee you could use any orphaned work. Phase III is about convincing the copyright office that there is overwhelming evidence that they should act to save orphan works.