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An orphan work is a copyrighted work whose owner is impossible to identify or contact. This inability to request permission from the copyright owner often means orphan works cannot be used in new works nor digitized, except when fair use exceptions apply. Until recently, public libraries could not digitally distribute orphaned books without risking being fined up to $150,000 if the owner of the copyright were to come forward. This problem was addressed in the 2011 case Authors Guild et al. v. Google.
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Background
The orphan works problem arose in the United States from the Copyright Act of 1976, which eliminated the need to register copyrighted works. Instead, according to 17 U.S.C. § 102, all "original works of authorship fixed in any tangible medium of expression" are automatically granted copyright protection. This Act made obtaining and maintaining copyright protection substantially easier than the previous Copyright Act of 1909. It also made unnecessary any central recording system to track and identify copyright-holders, but also made it difficult to find or contact the creator of a copyrighted work if the person or organization was not readily known. Thus, any use of the orphaned work outside of what is permitted as fair use is potentially a violation of copyright. Potential users of orphaned works are often not willing to take on that risk of copyright violation, so they may individually investigate the copyright status of each work they plan to use.
To some, this scenario is not in the public interest; it limits works that are available to the public. It also discourages the creation of new works that incorporate existing works. Creators who want to use an orphan work are often unwilling to do so for fear that they will have to pay a huge amount of money in damages if the owner ever appears; the risk of additional liability or litigation may be too high. This makes the work of historians, archivists, artists, scholars, and publishers at times more difficult and costly than necessary. The issue arises in Wikipedia, where the copyright owner of a photo that would have illustrated an article may be unknown.
Libraries and archives do have limited privileges to make copies of certain orphan works under section H of 17 U.S.C. § 108.
2006 study by US Copyright Office
In January 2006, the United States Copyright Office released a report on orphan works. This report was the culmination of a year-long study conducted by the office, based on open forums from the public to collect input.
In it, the Copyright Office states that new legislation is desperately needed to address the orphan works problem. The report proposed that if a nonprofit organization such as a library used an orphan work and the copyright owner came forward, then the library would be exempt from huge copyright infringement fines as long as it stopped using the orphan work right away. Commercial uses of an orphan work in which the owner came forward would only be charged a "reasonable compensation" of the profits, and use of the work would be allowed to continue.
The Office's proposed solution is thought to have favored publishers, and disfavored archivists and scholars.
Orphan works legislation
Beginning in May 2006, various legislative bills have been introduced in Congress aimed at addressing the issue of orphan works. As of 2016, Congress has not yet passed any legislation.
2006 orphan works bill
H.R. 5439, the Orphan Works Act of 2006, was introduced by House Judiciary Committee Intellectual Property Subcommittee Chairman Lamar Smith of Texas on May 22, 2006. This bill was based directly on recommendations from the Copyright Office report, including the "reasonable compensation" concept for copyright owners who come forward. Additions were also made from public feedback on the report to protect the work of visual artists. The bill was forwarded to the full House Judiciary Committee, but did not advance further.
2008 orphan works bill
H.R. 5889, the Orphan Works Act of 2008, was introduced on April 24, 2008 by three Members of the U.S. House of Representatives overseeing intellectual property legislation. The Senate bill S. 2913, also known as the Shawn Bentley Orphan Works Act of 2008, was introduced by Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and Senate Judiciary Committee Chairman Orrin Hatch (R-UT). Similar to H.R. 5439, the 2008 legislation carried the same conditions for appropriate use of a copyrighted work.
An important aspect of the bill is found in Section 3 which introduces the idea of a Database of Pictorial, Graphic, and Sculptural Works and states:
The 2008 legislation permitted limiting different forms of legal remedies, for example levying no statutory damages or attorneys fees, to be imposed against the user of a copyrighted work. However, the following conditions must apply:
Unlike previously introduced bills, the 2008 legislation included the following:
On May 15, 2008, the Senate Judiciary Committee voted to report the bill to the full Senate after adopting an amendment. The Senate unanimously passed this bill on September 26, 2008. However, the bill never passed in the House of Representatives, and died.
Argument against the bill
Opponents claim that the bill is vague and inefficient because copyright infringers would only need to prove that they made a "diligent effort" to locate the copyright owner of a work. The definition of "diligent effort" is vague, and it is not clear what copyright owners need to do to protect their work from these infringers. This potentially increases the number of infringers since the cost of infringing is not too great, and copyright owners must take more measures to protect their work than before.
Attempts to make orphan works available
The University of Michigan (UM) is leading the HathiTrust orphan works project, an initiative to make orphan works published between 1923 and 1963 on HathiTrust available to the UM community. However, the project was put on hold as of September 2011 in the wake of a lawsuit filed against HathiTrust, UM, and four other member universities by the Authors Guild, Australian and Canadian authors' organizations, and eight authors to stop them from "reproducing, distributing and/or displaying" copyrighted works. This case was settled in HathiTrust's favor in Authors Guild, Inc. v. HathiTrust on January 6, 2015.