The United States Copyright Office is seeking public input on how (or even whether) to deal with the problem of so-called "orphan works". An orphan work is one that was duly registered for copyright protection by its owner, but there is no practical way to find that owner. It is an unfortunate but relatively common occurrence that individuals listed as owners of registered copyrights are not available at the addresses listed with the Copyright Office. The Copyright Act grants the owner of a copyright a broad series of exclusive rights. Exercising one of those rights (like reproducing copies of the work) without the owner's permission is an act of copyright infringement. If you cannot find the owner of the copyright, you cannot get the necessary permission. Because the penalties for infringement are relatively harsh, it is often not worth the risk to make any use of an orphan work. Therefore, works whose owners cannot be found are likely to be avoided or ignored. Recent extensions of the term of copyright protection are likely to make the problem worse. By way of example, a book published in the 1930s and whose author died in the 1960s may still be protected by copyright. A publisher interested in reprinting and selling the book (and paying a royalty for the privilege of doing so) will have a difficult time finding the current owner of the copyright, or even the executor of the author's estate. So the publisher will be unlikely to proceed because it cannot get permission. Everyone loses in this situation. Heirs of the author do not receive royalties that the publisher would have gladly paid, the publisher loses potential profits, and the public does not have the work readily available. Worse, this result is the direct opposite of the purpose of the Constitutional provision providing for copyright protection in the first place. The idea behind the whole copyright system is to encourage authors to share their creations with the rest of us without fear of unauthorized copying, which allows for the broad use and distribution of those works. In the case of an orphan work, use and distribution is halted, except for those who are (arguably) willing to risk the exposure if they violate the rules. The United States Copyright Office considers the issues raised by orphan works to be worthy of further study to determine the scope of the problem and whether or not legislative proposals are in order. The Copyright Office posed the following questions to gather such information and welcomes additional comments and questions on the issue of orphan works. Written comments must be received in the Copyright Office on or before March 25, 2005. 1. What is the nature of the problems faced by subsequent creators and users? What type of creators or users are encountering these problems? How often are these problems encountered? What type of steps are taken to locate the copyright owners? 2. How should "orphan works" be identified and defined? Should orphan works be identified on a case-by-case basis? Should a formal system be established? 3. Should consideration be given to age? Should a certain amount of time elapse from publication or creation before a work can be eligible to be considered "orphaned?" 4. Should consideration be given to publication status? Should the status of "orphan works" only apply to published works, or should it also apply to unpublished works? 5. What effect would an "orphan" designation have on a work? Would an "orphan" designation result in a loss of rights? Should such a designation result in a limitation of recovery for owners whose works are orphaned? 6. What are the international implications of any proposed solutions? How would the proposed solutions coincide with existing international obligations regarding copyright? If you have had any experience trying to locate the owner of an orphan work or have any recommendations for how the Copyright Office can assist in eliminating some of the uncertainty posed by the use of orphan works, please provide your comments to the Copyright Office by March 25, 2005. If you would like further information or would like our assistance in providing comments to the Copyright Office, please contact Andy Norwood, Amy Roland, or any member of our Intellectual Property Group at (615) 244-6380. The opinions expressed in this bulletin are intended for general guidance only. They are not intended as recommendations for specific situations. As always, readers should consult a qualified attorney for specific legal guidance.