An "orphan work" is something currently protected by copyright, but whose owner can't be found even with diligent searching. Currently, if someone wants to make a copy of an orphan work (say, for archiving or republication), or use it to create a derivative work (like a compilation or montage) they risk huge statutory damages if the actual owner ever appears and exercises their rights. Unsurprisingly, many choose not to take that gamble, and works with potential useful value are left to languish.
The problem got a lot of attention last year, when the Copyright Office issued a report (pdf) concluding that ?the orphan work problem is real?, and suggesting legislative solutions. An Orphan Works Act was introduced last May, and eventually incorporated into the problematic Copyright Modernization Act of 2006. The CMA stalled in September, but Congressional attention may yet return to this critical issue.
In today's New York Times, U.C. Berkeley professor Hal Varian revives the issue, highlighting the economic waste it creates. He discusses some of the various proposals for mitigating the problem, including revisions to the registration system, shortening default copyright terms, and provisions to waive statutory damages in some circumstances. Varian concludes:
"The orphan works legislation from the Copyright Office is still on the back burner in Congress. Let us hope that it soon gets the attention it deserves. Information plays a crucial role in today?s economy. Making it easy for creators and users of information to find each other should be a high priority for policy makers."
