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

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 Act¹ —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, 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.

At the same time that term extension was being debated, a more tangible problem surfaced relating to motion pictures: how to ensure the preservation of orphan work films regardless of their legal status (that is, whether copyright protected or public domain). It was understood then as now that many films of little or no commercial value might be of great aesthetic, cultural, educational, and/or historic value. It was also clear, after a seminal 1993 Library of Congress film preservation study, that these orphan works were the most vulnerable to loss. During preservation study hearings in Los Angeles, Roger Mayer (who now chairs the National Film Preservation Foundation) highlighted the need to increase efforts to preserve films that have "no father and no mother to take care of them."³ The Report of the Librarian of Congress concluded that films, "often labeled 'orphans,' that lack either clear copyright holders or commercial potential to pay for their continued preservation" require the most urgent attention from the government and preservationists.⁴ So a concerted effort was undertaken in the 1990s by the National Film Preservation Board of the Library of Congress and a sister organization—the National Film Preservation Foundation—to preserve endangered orphan films and, where possible, to make them more accessible to the public. The clear congressional purpose in the organic act of the National Film Preservation Foundation in 1996 (and again in the 2005 reauthorization) was to focus preservation efforts to save orphan films (defined as films "not protected by private interests").⁵ These were steps in a process, still continuing today, to support the many public archives and museums ("orphanages") that collect, catalog, preserve, and restore these films.

The film preservation efforts directed to orphan films in the mid-1990s played an important role in focusing attention on the preservation of orphan works in general, as well as a part in the development of the pending potential legislative response. However, the 2006 legislation is in much larger measure a reaction to the 1998 term extension provisions (which treated all works, not just films). The new orphan works amendments would, if adopted, broadly extend access to and the use of orphan works whether newly created or long-since abandoned. The recent consideration for broad access to orphan works is a way of letting some of the steam out of the still-simmering opposition to...