Proposed Legislation on Orphan Works: Solving the Problem or Escalating the Crisis?

Following a lengthy investigation and enthusiastic public response, legislation is currently pending in Congress to provide limitations on remedies in copyright infringement cases where permission could not be acquired from the copyright owner prior to use because the copyright owner could not be found. The problem of "orphan works" is extensive and exacerbated by the current duration of the copyright term and new technologies that raise user needs and expectations for online access to information. The orphan works problem affects many communities of users and impedes library efforts to digitize and provide online access to their collections. Beginning with a brief summary of a detailed analysis of the public comments received and transcripts of the roundtables convened by the U.S. Copyright Office, this presentation will focus on key issues of contention in the debate. It will trace the trade-offs between private interest and public good made in the Copyright Office's proposed legislation and the subsequent changes and accretions to the proposal made prior to its introduction in the House of Representatives as the Orphan Works Act of 2006. The presentation will conclude with articulating concerns about the bill that question the likelihood that it will facilitate building a digital library and suggestions for how libraries might nevertheless collaborate to contain costs and thereby leverage the opportunity it would afford should it be enacted into law.