IALL 2022 Recap: International Copyright and the Problem of Orphan Works

By Meredith Capps

On Wednesday, October 12th, Paul Goldstein, the Stella W. and Ira S. Lillick Professor of Law at Stanford Law School and of counsel at Morrison & Foerster LLP, spoke at the International Association of Law Libraries Annual Course about legal approaches in the U.S. and abroad to copyright law governing “orphan works” (copyrightable works for which a rights-holder cannot be identified).  He began his talk by describing an instance in which he advised a non-profit entity hoping to digitize photographs taken of antiquities and make those photographs available online, when a diligent search to establish the origin of the works would be expensive, and potentially fruitless.  Though he advised the organization to take an intermediate approach, conducting a reasonable search but relying on the fair use doctrine to provide legal protection should an unknown rights holder raise a claim, the group ultimately decided not to pursue the project due to concern regarding legal risk.  Goldstein called the volume of orphan works “indescribable,” with potentially hundreds of millions of such works in circulation; one estimate suggests that as many as 90% of works in British museums have no identifiable rights holder.

Goldstein then described five legal approaches to usage of orphan works, several of which ask users of a work to conduct some type of search and pay a form of compensation, either directly to a later-found owner or to a rights management entity (“search and pay” systems).

  1. The approach provided in European Union Directive 2012/28/EU, which requires users who are non-profit institutions to conduct a diligent search for the work’s rights holder, to document that search, and to compensate the owner should they come forward.
  2. The approach taken in Canada and the United Kingdom, wherein interested users of a work must seek permission from a central authority to use the work, who if it approves the request will assess a fee intended to compensate rights holders should they come forward within a designated time period.
  3. A draft U.S. proposal considered that would limit remedies available to those later asserting rights in orphan works to “reasonable compensation” if the user conducted a diligent search, and exempting non-profit institutions from that compensation requirement (see discussion in the Copyright Office’s Report on Orphan Works). 
  4. Extended collective licensing systems, utilized by some Nordic countries and Germany, wherein a local reproduction rights organizations (RROs) grants licenses to utilize non-licensed works.
  5. Approaches that do not require search or payment, and instead rely on protection from doctrines such as fair use.

Goldstein typically advises, as illustrated in his initial anecdote, that users in the U.S. conduct a diligent search for potential owners of orphan works, because although a diligent search is not an element of fair use analysis, that analysis does consider whether users are acting in good faith, and a diligent search can establish good faith.  However, Goldstein acknowledged uncertainty surrounding application of the fair use doctrine, particularly the element concerning the transformative nature of a work, and he believes that the U.S. Supreme Court might soon limit this element and thus certain fair use defenses.  His preferred policy approach is the extended collective licensing model, in part because such a system provides a database of works, with his second preferred policy being the U.S. proposal which would limit compensation requirements for those who conducted a diligent search.  Goldstein then discussed another mechanism that might provide users some protection, and that is already utilized to some degree in the entertainment industry – error and omissions insurance.  “I don’t like arguments; I like systems that work,” he stated in concluding his discussion of his preferred approaches to the problem of orphan works.

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