The problem of orphan works has been the subject of a great deal of controversy. Libraries and others are pushing for a solution to the problem as their desire to be able to preserve works with unknown or missing creators have been impeded by the uncertainty of their copyright status. After an investigation the government has agreed that the problem is real and needs to be addressed (Peters), but they are getting a great deal of opposition from organizations that are worried that the language of the bills will result in copyrighted works that are not orphaned being labeled that way, thereby allowing users to infringe without penalty. Three such organizations are the National Music Publishers’ Association, the Illustrators’ Partnership of America, and the Association of American Publishers. These organizations have put forth some ideas that are not being completely unreasonable and should be included in any bill; however, some should not be added to any legislation.
The first organization the National Music Publishers’ Association is not opposed to the government creating an orphan works system; however, they have lobbied hard for certain provisions to be included in the bills to make sure the publishers and songwriters they represent do not lose their rights. They are insisting on making a new user “secure a Section 115 compulsory license if the new use requires such a license” (“NMPA Position Paper on Orphan Works Legislation”) and allowing a missing owner to ask for legal fees if they sue. They want comprehensive industry-specific Best Practice guidelines so that new users will have to engage in a diligent search and they want them included in the legislation. They also want these Best Practices to be developed by industry representatives with expertise in the copyright field and their representatives. They also want the details of the search not only filed with the U.S. Copyright Office, but that copyright owners have the right to see if anyone has filed a search (“NMPA Position Paper on Orphan Works Legislation”).
The desire for comprehensive industry-specific guidelines developed by industry representatives with expertise in the copyright field and their representatives might not be a bad thing, except for the fact that the guidelines may be so stringent that it would be impossible for anyone to perform. The guidelines are obviously needed and representatives from the industries should be involved in helping form them, however any committee for forming them must include others from the copyright office and libraries, and others. Also their desire to have all the details of the search not only filed with the U.S. Copyright Office, but to allow copyright owners the right to see if anyone has filed a search may be an issue. The question of how to maintain and pay for such a database to hold that information comes up. This is any database will probably have to be paid for by fees, so that it pays for itself.
The second organization the...