Intellectual Property Law Blog

In 1998 Congress, to conform to European practices, extended pre-1978 copyrights to 95 years and provided for a term of life plus 70 (95 years for works-for-hire) for post-1978 works.  Practically speaking, the older the work, the less likely it will have any real economic value and the more likely that the owner will be difficult, if not impossible, to locate or even identify.  Given the risk involved in creating new works based on older ones, few will incorporate one of the "orphans" into a new work for fear of a ruinous award of damages or, even worse, an injunction prohibiting all use of the new work.

Orphan work legislation would restore balance to a system where longer terms mean more works are withheld from public use.  It would generally limit or regulate awards of damages and even prohibit injunctions in certain cases where a user conducts a reasonable investigation but cannot identify or locate the owner.  Should the owner make himself known after commencement of the use, he will generally be limited to claiming a reasonable royalty.  Ultimately, disputes would still need to be resolved in the courts although the legislation, as currently drafted, clearly favours negotiated settlements for use of works which were reasonably believed to be without owners.

It is not clear whether this legislation will ultimately be passed by Congress and signed into law by the President.  Copyright owners have raised legitimate concerns about how a "reasonable" search can be defined without giving prospective users a blue print or license for circling around and avoiding legitimate right holders.  Unless these concerns are met, orphan works may continue to languish somewhere between a zone of amorphous exclusivity and the public domain.