Only The Copyright Office Would 'Fix' The Problem Of Orphan Works By Doubling Down On The Problem Itself

For many, many years, we've been discussing the "problem" of "orphan works" under copyright law. These are works that are not available any more, and where it simply is not possible to find the copyright holder to seek out a license. Of course, this problem is almost entirely self-created. It's the result of a forced switch from a system that required registration to get a copyright, to one where everything is automatically covered by copyright. Combine that with ever-expanding copyright terms and you have a recipe for a world in which the vast majority of works become "orphaned" while just a tiny few have any legitimate reason to remain under copyright protection. Millions of books, millions of photographs and hundreds of thousands of films are now considered orphaned works -- unable to be either used or licensed -- with many simply fading away. In fact, some have reasonably advocated that we should be referring to them as hostage works rather than orphaned works. These works haven't been "abandoned." They need to be freed, not given adoptive parents. In the past, attempts at legislating a solution to the problem with these hostage works have fallen flat, often after facing significant pushback from authors and photographers who spin ridiculous stories about how orphan works legislation is really about legalizing the "stealing" (of course) of their works. Of course, that's never actually the case. Pretty much all attempts at dealing with orphan/hostage works involve requiring significant attempts at locating copyright holders. Either way, the US Copyright Office has released a giant report on what to do about "orphan works," which is an interesting read, even if the Copyright Office still can't bring itself to admit that the "problem" of these hostage works has to do almost exclusively with two legal changes it has long supported: getting rid of formalities (registration) and extending copyright terms. Instead, it acts as if such hostage works are a problem wholly unrelated to all of that -- and in need of new policies to "fix" the problem that the old legal changes created, rather than rolling back those bad policies. 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:

In addition to a diligent search, condition eligibility on a user filing of a Notice of Use with the Copyright Office, providing appropriate attribution, and engaging in negotiation for reasonable compensation with copyright owners who file a Notice of Claim of Infringement, among other requirements;

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:

The Office believes that the principal advantage of a Notice of Use requirement is that copyright owners can use it to become aware that their work is considered orphaned and more easily respond to users. As noted above, the goal of any orphan works provision should be to unite owners and users.

Um, you know what would be even better at that stated purpose? Requiring the copyright holder to register in the first place so that there would be no such thing as an "orphaned" work and any user could much more easily find the copyright holder in question. But that's not even remotely considered in this report. And the really amazing thing is that any time people bring up the idea of requiring registration/formalities for copyright holders, they are always dismissed out of hand as "too burdensome" for copyright holders. Yet, here, when requiring the same damn thing for those wishing to use hostage works, the Copyright Office dismisses the concern out of hand because it also provides some other ways around it. The other bizarre thing about the report is that it seems to be dripping with contempt for fair use. The report, rightly, notes that there have been a few recent important court rulings -- such as the