New White Paper on Orphan Works and Who Participates in the Diligent Search for Rightsholders

Here’s the latest white paper from the Berkeley Digital Library Copyright Project.

Title

Orphan Works and the Search for Rightsholders: Who Participates in a ‘Diligent Search’ under Present and Proposed Regimes?

Authors

David R. Hansen
University of California, Berkeley – School of Law

Gwen Hinze
University of California, Berkeley – School of Law

Jennifer M. Urban
University of California, Berkeley – School of Law

Source

via SSRN

Abstract

Over the past several years, policy makers and private actors have developed an evolving set of approaches for addressing the orphan works problem — a problem that arises when “the owner of a copyrighted work cannot be identified and located by someone who wishes to make use of the work in a manner that requires permission of the copyright owner,” preventing follow-on uses of works. These approaches usually attempt to address the orphan works problem by employing some threshold mechanism to differentiate true orphan works, to which the proposed solutions would apply, from non-orphaned copyrighted works. Satisfying a “reasonably diligent search” is one well-known formulation by which users can designate works as orphaned and therefore subject to a proposed solution, though — as this paper points out — alternative approaches certainly exist. Regardless of the specific formulation, the search for rightsholders (or conversely, the confirmation that no rightsholder can be located) is an integral component of almost every orphan works proposal. This paper examines in detail the core schemes for identifying rightsholders among the leading orphan works regimes and proposals. Although these schemes differ across many variables, three factors predominate: (1) who is expected to participate in the search process, (2) the nature and extent of the required search generally; and (3) specifically what types of resources, tools, registries or other information-sharing mechanisms are required or allowed.

This paper compares existing proposals’ approaches with respect to the first factor: who participates in a search? A subsequent paper will focus on the second and third factors.

Download the Full Text Paper Here

See Also: Other White Papers From Berkeley Digital Library Copyright Project

• Orphan Works: Definitional Issues

• Orphan Works: Mapping the Possible Solution Spaces

• Orphan Works: Causes of the Problem