Access to Orphan Works: Copyright Law, Preservation, and Politics

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In the past two years Congress has turned its attention to amending U.S. copyright law to permit the broad public use of so-called "orphan" works—works for which a copyright owner cannot be determined. Although amendments to the law were not adopted in the 109th Congress (which concluded in December 2006), the momentum for change in the coming years is building. The history of what spurred Congress to action is instructive to understanding the substance of the proposals now under consideration.

Congressional consideration of orphan works—including the preservation of physical copies (films)—dates back at least fifteen years. In the years preceding the passage of the 1998 Sony Bono Copyright Term Extension Act ¹ —to the current term of the life of the author plus a seventy year term or ninety-five years for works made for hire—granting term extension to so-called "orphan works" (variously defined) was raised, albeit as a minor consideration. ² Both supporters and opponents of term extension understood that the then proposed amendments would likely extend term to a broad sweep of commercially valuable and commercially insignificant works. Far more attention was paid and opposition raised to the somewhat related issue of whether to restore copyright to preexisting public domain works when (or if) terms were extended. Ultimately, the 1998 term extension provisions were adopted "retroactively," thus including preexisting works, but the changes excluded any works already in the public domain. The issue re-mained of what to do about all those works with little or no commercial value, and, [End Page 139] in particular, those for whom an original copyright author or current owner could not be found—including all those works after 1998 that were term extended...."