Policy Practicum: Reducing Copyright Barriers to Creativity: The Problem of Orphan Works

Catalog description

Orphan works--copyrighted works that have no readily identifiable owner--represent the single greatest legal hurdle to creativity today. A film maker wants to make a documentary about the portrayal of minority groups in 1950s motion pictures, but cannot track down the present copyright owners of the dozens of film clips that must be licensed to complete the project. A video game producer has found just the right sound recordings to sample in its latest release, but cannot locate their copyright owners to negotiate a license. The examples can be multiplied across all forms of creative commerce. The copyright doctrine of fair use will excuse some, but far from all, of these uses, and the doctrine's application is at best unpredictable. Legislative fixes for the orphan works problem have been attempted both in the US and abroad, but with little success. Following two years of hearings, Congress in 2008 came close to passing an orphan works bill proposed by the US Copyright Office, but ultimately stepped away from the effort. This policy lab will evaluate the prospects for an alternative--but so far untested--solution to the problem of orphan works: private insurance products that will underwrite the legal and economic risk of using copyrighted works in situations where transaction costs make the negotiation of a license impracticable. Participants in the lab will interview stakeholders to investigate the feasibility of private insurance covering the use of orphan works. Among the stakeholders interviewed will be insurers and other insurance industry institutions; content owners across a range of industries and content users across a range of institutions. Experts from the US Copyright Office will also participate in a teaching capacity, on a periodic basis, to provide context for the challenge of orphan works and the work the Office has done on this issue. Elements used…