What happens when a law-abiding person wants to use a photograph, image, writing or other work that may be subject to copyright protection but cannot identify or locate the original author to secure permission? The dilemma these “orphan works” poses is the subject of a 106-page report issued by the U.S. Copyright Office in June 2015 titled, “Orphan Works and Mass Digitization.” The 2015 report has left the creative world abuzz and, in many cases, aghast at the implications of proposed legislation some believe would effectively overhaul the U.S. Copyright Act and permit users to use copyright-protected works without the permission of copyright owners who cannot be identified or located.

The orphan works problem is nothing new, and the 2015 report does a rather nice job outlining previous attempts both in the United States and abroad to address what the Copyright Office has described as “perhaps the greatest single impediment to creating new works.” Although the 2015 Report includes a proposed legislative framework, its primary purpose is to revisit the orphan works problem in an organized and comprehensive fashion and solicit comments from the general public. Despite a number of widely circulated emails and social media posts describing the 2015 report as a devastating blow to artists’ rights, the 2015 Report may instead be the next step toward a much needed compromise that could create a comprehensive framework for the limited use of orphan works while avoiding the proverbial “chilling effect” on those whose creativity should and must be protected.

The Orphan Works Problem

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