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Building an Orphanage: How Judicial Authority Can Provide Immediate Relief to the Copyright Orphan Works Problem Open Access

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An orphan work is a work protected by copyright of which the owner is unidentifiable or otherwise unable to be located for the purposes of seeking authorization to use the work. The orphan works problem, born out of copyright law revisions lacking foresight, have now become a festering problem, for which United States copyright law lacks an adequate solution In the past decade, the Copyright Office has urged Congress to adopt legislation in order to prevent the continued growth of the problem, and to provide a means by which the public can make use of orphan works without authorization or major penalty. However, those efforts have not been successful. Other countries suffering from the same problem have enacted legislation that takes numerous forms. Yet, those efforts also suffer from limitations, reducing their effectiveness, and rendering unattractive the only available models to a legislative solution. Thus, the federal judiciary should return to its practice of incorporating concepts from other areas of law to build a framework from which legislation may later result. Throughout the history of copyright law, courts have used their authority to incorporate concepts like secondary liability and misuse from other areas of law, as well as to develop from scratch unique doctrines such as fair use. They have done so to provide immediate relief from an existing problem, without any explicit statutory basis for doing so. To provide immediate, if only temporary, relief from the problem of orphan works, courts should use their authority to draw from doctrines of abandonment and forfeiture that are familiar in the areas of real and personal property law, and adapt them to the needs of copyright policy. In adapting doctrines of abandonment and forfeiture, courts should focus on issues such as what constitutes adequate notice of ownership, what kind of conduct should amount to a finding of abandonment, and for how long that conduct must endure before a case for abandonment can sustain in defense to copyright infringement. With the proper care and consideration, judicially addressing the orphan works problem can, and hopefully will, lead to a legislative solution in the future that is not only effective, but provides the certainty potential users expect before deciding to making use of an orphan work.

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