08 February 2006

Notes From the Orphanage

I have found one aspect of the Copyright Office's report on orphan works rather disappointing: the short, dismissive discussion of "nonlegislative solutions." I am disappointed here for several reasons, and I'm keeping my personal contribution to the discussion out of it.1 The problem that I see is really one of scope. The report's authors were concerned that

As with the comments that focused on existing solutions, however, there was little suggestion that the non-legislative solutions, standing alone, would adequately solve the orphan works problem.

Report at 71. Well, of course they wouldn't. Even a legislative solution will not "solve" the problem; it would only make the procedure for remedying some instances of the problem clearer.

Part of the difficulty with the "orphan problem" is that it is actually a confluence of several different problems:

  • Changes in control of copyright ownership;
  • Changes in the nature of copyright ownership, such as through bankruptcy with abandonment;
  • Indistinct registration records that make it difficult to determine exactly what has been registered;
  • The chaos of renewal/nonrenewal;
  • The amorphous nature of fair use; and, far from least,
  • Ignorance, obstinacy, and inconvenience.

I believe that the report underestimates the power and potential of the Copyright Office's own educational materials. Copyright Office circulars and forms get passed around among writers' and artists' groups far more often than mere downloading statistics might imply. No single solution of any kind can completely solve the "orphan problem," if only because any retrospective solution may create a takings problem. After last term's decision in Kelo, I don't think any rational being wants artistic rights to end up being resolved under that rubric!2

  1. Report at 70–71; 71 n.204–05.
  2. I'm not implying either disagreement or agreement with the substantive result in Kelo. I think what we can probably all agree upon, though, is that the writing in that opinion is the least satisfactory of any of the twenty or so major opinions of last term, by a considerable margin.