Abandoning the Orphans: An Open Access Approach to Hostage Works

Abstract

The lengthening of the duration of copyright protection and the elimination of copyright registration formalities have contributed to the rise of so-called orphan works: works that remain subject to copyright law but whose owners cannot be identified and located by someone who wishes to make use of the work in a manner that requires permission of the copyright owner. In this Article I examine one of the root causes of the inability to address the orphan work problem: the metaphor of the "orphan" itself. I propose that these works should not be viewed as orphans, but rather as "hostages"--constrained in their movement by the restricting combination of the set of rules established by copyright law and the absence of the owner who could release the works from what binds them in their confinement. The hostage metaphor leads to a clearer recognition that what is needed is not a stand in for the "parent" of these orphans, rather what is called for is an incentive for responsible parties to operate as "special forces" to free the hostages. I propose a limited immunity for entities that act as "special forces" in freeing the hostages. The immunity should be available when an entity non-negligently identifies a work as a hostage work and provides an open access copy of that work with the hostage-freeing information attached in human and machine readable form. I also suggest that courts should employ equitable doctrines to limit the infringement remedies available against derivative work creators that would discourage copyright owners from delaying in making their presence and availability known. Adopting this approach would provide an appropriate level of protection for copyright owners and significantly reduce a form of waste created by the hostage work problem.