ORPHAN WORKS IS MORE THAN ONE POLICY ISSUE

WHAT TYPE OF SYSTEM TO USE
  • Use by use (the Canadian example) 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?

DATABASES
  • Should the Copyright Office run a database to enable searches for copyright owners?
  • Are 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?

RECOGNITION
  • How should the creator be credited if some information is available?

USES
  • Should only non-commerical 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 photograph to advertising)?
  • Are there potentially objectionable uses that should not be allowed (hate speech, pornography, etc...) and who determines what is potentially objectionable?

ADVANCE COMPENSATION
  • Should compensation be paid in advance into an escrow account?
  • Who gets the money if no one ever shows up?

AFTER USAGE COMPENSATION
  • Who sets the compensation amount and what use is it for?
  • Can the owner who shows up say no to further use even if a royalty is paid?
  • 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?

H.R. 5439 or something like it is one possible approach, but there are others