The Regulation

• The Copyright Office has submitted a report to Congress outlining the extent of the orphan works problem and recommending a legislative solution.
• Orphan works are creative works the authors of which cannot be ascertained. If a work's copyright owner cannot be found to secure their permission to use the work, then no one will ultimately use the work lest they risk liability for copyright infringement.

Recommendations

• An efficient solution to the orphan works problem will create an incentive for would-be users of a work to take every reasonable step, in good faith, to identify the work's copyright owner in order to acquire permission to use the work. Perfunctory attempts to seek permission, or sham attempts made in bad faith, should not qualify a user for protection.
• Courts should apply any orphan works protection on a case-by-case basis. A categorical approach-defining a class of works as orphan works and automatically limits liability for using works in that class-impinges on authors' rights more than is necessary to address the orphan works problem.
• If a user of an orphan work is found by a court to have conducted a reasonable search in good faith, she should not be subject to any monetary liability. This will help create the needed incentive for authors to take steps to make themselves locatable. Additionally, it would eliminate the need for courts to have to speculate on what would be reasonable compensation for use of a work.
• Orphan works are not a transitory problem. Additionally, Congress may modify the Copyright Act any time it becomes necessary. Therefore, there is no reason why an orphan works amendment to the Copyright Act should include a sunset provision.

Mercatus Legal Fellow Jerry Brito and Editor-in-Chief of the Federal Circuit Bar Journal, Bridget Dooling, published their report in the Fall 2005 issue of the Michigan Telecommunications and Technology Law.