COPYRIGHT—DON’T FORGET ABOUT THE ORPHANS: A LOOK AT A (BETTER) LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM

This Note addresses the problems in copyright law created by orphan works. The Author identifies three issues. First, it stifles creativity by limiting the public’s access to the piece. Second, it defeats the economic incentive to create copyrightable works because no one can receive the potential royalty if the copyright owner cannot be found. Third, it undermines copyright law by forcing some orphan works users to violate infringement laws, despite efforts to comply. Recent attempts at legislation have been unsuccessful. According to the Author, the sole remedy is to create uniformly-applied legislation that fairly balances the interests of copyright holders, those who want to use copyrighted materials, and the public’s access to and the availability of as many creative works as possible. Part I of this Note is an overview of the copyright system. Part II illustrates factors that contribute to a copyrighted work becoming orphaned. Part III discusses the Copyright Office’s Report on Orphan Works from 2006 and Congress’s proposed acts in 2008. Part IV examines why the proposed acts in 2008 ultimately did not pass in Congress. Part V discusses alternatives to legislative action. Part VI details what it means to conduct a reasonably diligent search. Part VII is an application of the proposed definition of the term, “reasonably diligent search.” The Author notes that if the United States wants to become a world leader in copyright law, Congress should enact legislation regarding the orphan works problem—a global, not just domestic, problem. The benefits of a legislative solution are better than the benefits of other potential solutions and, more importantly, are not unrealistic, but are completely plausible