ORPHAN WORKS IS MORE THAN ONE POLICY ISSUE

WHAT TYPE OF SYSTEM TO USE
  • Use by use (the Canadian model) or a blanket approach?
  • Limited to specific types of works or uses or applicable to all copyrighted works?
  • Should a statement of use be filed in advance and with what entity?

THE SEARCH
  • What is a reasonable search for the copyright owner?
  • Does the “reasonableness” of a search depend upon the intended use, i.e. should the search for a commercial use be more intensive than a non-commercial use?
  • What evidence of a search should be kept and should it be filed with the U.S. Copyright Office?
  • Should a statement of use be filed with the U.S. Copyright Office before use commences?
  • Who and when can these notices of use be seen?

DATABASES OF OWNERS
  • Should the Copyright Office operate a master database of copyrighted works to enable searches for copyright owners?
  • Are one or more private sector databases a viable and/or preferable alternative to a Copyright Office database?
  • What technology needs to be developed that is not available today either to better locate owners or find users?
  • What would the cost of such databases be and who should bear these costs?
DATABASES OF USERS
  • Should a database of uses of orphan works be created and by whom?
  • Should this database be searchable by anyone - “light archive” or only accessible as part of litigation - “dark archive”?
  • Does the fact that a work is in such a database mean that others can rely upon this fact to also use it for their own purposes without conducting a search of their own?
  • If a database is a “light archive” how can copycats be prevented from copying everything in the database to create a potentially royalty free collection?
  • If the database is a “dark archive” how do owners know whether someone is using their work or not?

RECOGNITION
  • How should the creator of the work be credited if enough information is available to identify the user, but not locate him?

USES
  • Should only non-commercial uses be made of orphan works?
  • Should uses only be allowed of the same type of us as the original (photograph to photographic reprint, but not text pattern to shower curtain)?
  • Are there potentially objectionable uses that should not be allowed under an orphan works system (hate speech, pornography, etc...) and who determines what is potentially objectionable?

ADVANCE COMPENSATION
  • Should compensation be paid in advance by users into an escrow account - the Canadian model?
  • Who receives the money if no owner ever shows up to collect it - the government, collecting societies, a refund?
  • What if the amount of the advance compensation is set too high or too low?
  • Should compensation be a fixed amount per use or per work?

AFTER USAGE COMPENSATION
  • Who sets the compensation amount and what use is it for?
  • Can the owner who reappears say no to further use even if a royalty is paid for past, present, and future use?
  • What about exclusive licensing arrangements that are now no longer exclusive?
  • What if the user offers $50 for a work and the owner wants $500 or $50,000?

INJUNCTIONS
  • If an orphan photograph is used in a book, what happens to unsold copies if the copyright owner reappears and demands that the use be stopped? Does it matter what type of book it is (museum collection book versus a romance novel)?