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Copyright Office Wants Your Feedback On Its Flawed Solution for the Orphan Works Problem

6915188757_b176fbdf0f_bTomorrow morning’s link post is going to include a link to a Boing Boing post on the comment period for an orphan works proposal being put forward by the US Copyright Office.

Since I myself was vague on the background and seriousness of this issue (and since Boing Boing lacked sufficient details), I thought it would be worth our time to round up a few links as a refresher.

Let’s start with the most basic detail. What is an orphan work?

According to Wikipedia:

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.

Orphan works are a known side effect of our existing copyright laws. Between long copyright terms, automatic copyright protection, and the lack of a registration requirement, current copyright law was almost intended to result in works that have no known owner.

Whether the copyright holder died, lost control of a work in a messy legal dispute, or perhaps was never known in the first place, orphan works are a serious hassle to anyone trying to use a work legally.

Several attempts have been made to address this issue, both by non-profits and by the US govt. (The HaithiTrust is one such project.)

The last time the US govt tried to address this issue was in June, when the US Copyright Office released a report on orphan works. The report looked at past attempts to fix this issue and made proposals on what to do about it.

You can read the report as a PDF, and you can find a summary of the proposal over on Graphic Policy or on The 1709 blog.

Once you’ve read the summary, head on over to the Society of American Archivists (PDF) or Techdirt for summaries of what’s wrong with the proposal.

In Techdirt’s view, it’s because the proposal doesn’t address any of the three defects I mentioned above. Instead:

The report proposes a law fairly similar to the one that we wrote about a decade ago, but slightly more ridiculous: it includes a requirement for users to "register" their use of orphaned works with the copyright office.

Think about that for a second. Rather than fix the actual problem by requiring registration by the copyright holder, the Copyright Office is recommending, instead, that the user have to register. The Copyright Office, bizarrely, defends this requirement by saying that it will serve a useful purpose of bringing users and copyright holders together.

One problem with Techdirt’s alternate proposal is that it will not fix the current orphan works problem, but will instead prevent future orphan works. And so Techdirt hasn’t shot down the Copyright Office’s proposal so much as they pointed out that the proposal was incomplete.

Also, Techdirt ignored the several details that in my opinion the proposal got right (see the summaries for more details).

In any case, if you want to comment on the US Copyright Office’s proposal, you can find more details on Boing Boing.

But before you go, here are the links I just mentioned:

  • Orphan works in the United States (Wikipedia)
  • Orphan Works & Mass Digitization PDF (
  • US Re-Enters the Orphan Works Debate (The 1709 Blog)
  • Don’t Believe the Hyperbole, There’s No Orphan Works Law Before Congress (Updated) (Graphic Policy)
  • Letter PDF (
  • Only The Copyright Office Would 'Fix' The Problem Of Orphan Works By Doubling Down On The Problem Itself (Techdirt)

image by gaelx

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fjtorres September 15, 2015 um 7:15 am

Well, one solution is not to use orphan works.
Instead, create something new.
Don’t rely on somebody else’s creativity; be creative yourself.

Nate Hoffelder September 15, 2015 um 9:09 am

This is not a solution. It deprives the public of a work, and it also limits what can be created.

It’s a terrible idea.

fjtorres September 15, 2015 um 10:37 am

Where does it say that using someone else’s creation for your benefit is a right?
Rip’em off when they hit the PD.
Until then, create your own stuff.
Too much entitlement-think out there; "I want" does not automatically convey the right to take what isn’t yours.

Nate Hoffelder September 15, 2015 um 11:02 am

Where did I say it was a right?

But more importantly, referring to an orphan work as "someone else’s creation" is erroneous. The odds are good that the creator doesn’t control it any more (that’s why it is an orphan). It is no one’s creation at this point, and it never was anyone’s property. Copyright is a govt granted monopoly right, and in the case of orphan works we no longer know who holds that monopoly.

"for your benefit"

Why do you assume that I am only out for my own benefit, and not the public good? Copyright exists in the US explicitly to serve the public good. Orphan works can’t even be distributed freely, and that hurts everyone.

fjtorres September 15, 2015 um 11:12 am

Copyright exists for the public good.
Under very specific terms.
And content is either under copyright and owned by somebody or in the PD.
Orphan works is just a buzzword Google abd co created to justify taking control of material under copyright to make money off it.

If it is under copyright, somebody owns it and it is their prerogative to use that copyrighted material or sit on it. Their property rights supersede everything else for the duration.

All the talk off "orphan works" always boils down to stripping away the copyright so somebody else can use it for their own purposes.

"I’m from the government. I’m here to help."
Yeah. Right.

Nate Hoffelder September 15, 2015 um 11:39 am

"Orphan works is just a buzzword Google abd co created to justify taking control of material under copyright to make money off it."


"If it is under copyright, somebody owns it and it is their prerogative to use that copyrighted material or sit on it. Their property rights supersede everything else for the duration."

Nope. No one owns it. Some one may control the govt-granted monopoly but no one owns the work. It’s not property, and there are no property rights. And in the case of orphan works, we don’t even know who controls the govt-granted monopoly.

Copyright in fact is antithetical to property law. The latter is based on possession, while copyright is exclusionary. If you want to apply the same property right rules to copyright, okay, but it will mean anyone who possesses a copy of a work will also posses the right to copy and distribute it.

Maria (BearMountainBooks) September 15, 2015 um 1:49 pm

I hate copyright arguments as it generally reverts to those who have never patented or had need to copyright and earn money from the copyright arguing on behalf of "public need" or "public welfare" against those who wish to potentially have some say in something they created. All that aside, what I found most amusing about the summary above is that the government (copyright office) came up with a solution that suggests "registration" by those wanting to use something unclaimed. Because who does that benefit the most? The copyright office. It costs a minimum of 35 dollars to register copyright (it can cost more, depending on how something is filed).

Orphan books | Making Book January 9, 2017 um 11:43 am

[…] Cory Doctorow on the Copyright Office’s ECL plans, and here’s The Digital Reader’s  round up of the issue, with lots of links. (I rather suspect that many of the objections cited […]

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