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Tulane Law delegation makes recommendations on copyright “orphan works”

April 16, 2014

The flip side of freeloaders brazenly using copyrighted music, film, photos and documents without paying is a problem of creative material that can’t be recirculated at all because the owners can’t be found.

Congress, the U.S. Copyright Office, attorneys, academics and artists have been trying for years to address the problem of “orphan works.”

In March, Tulane Law School Professor Elizabeth Townsend Gard and alumni Gregory Scott Stein (L ’13) and Daniel Collier (L ’13, LLM ’14) took part in roundtable discussions hosted by the Copyright Office to brainstorm potential legislative solutions.

Now, the office is seeking public comments responding to the issues raised at the roundtables. The deadline recently was extended to May 21.

Among other input, the Tulane delegation submitted an extensively researched reply comment prepared by the class on orphan works that Townsend Gard, Professor Glynn Lunney and Stein taught in 2013.

The discussions represented another aspect of a project with real-world application to the legislative and rulemaking process. “It was really such a great accomplishment for representatives of the orphan works class to participate,” Townsend Gard said.

The Constitution gives Congress power to regulate copyright so that creators of works such as music, movies and books can profit exclusively from their productivity for “a limited time.” Those who want to use copyrighted material before it goes into the public domain generally must find the owners and pay them royalties or get permission for free use.

But orphan works are those for which copyright owners can’t be located. Federal copyright officials have called the uncertainty surrounding orphan works “a major cause of gridlock in the digital marketplace.”

Former Register of Copyrights Marybeth Peters has written that a litany of changes Congress passed over the years to make it easier for copyright holders to assert their rights also “diminished the public record of copyright ownership and made it more difficult for the business of copyright to function.”

But there’s intense debate about the extent of the problem and what Congress should do to fix it.

“People want to be able to understand the law and use the copyright system effectively, but if the laws themselves are unclear or difficult to interpret, then the law’s purpose becomes frustrated,” the Tulane Law comment said. “Whatever comes of orphan work legislation, we ask that the standards are clear, concise, objective, and consistent for all users.”

The Tulane comment also says that some important tools already are contained within existing copyright law and that adjustments could be made without a major overhaul.

“At the very least, there needs to be greater awareness of the availability of the existing mechanisms under the current Copyright Act that can be used to alleviate some of the burdens that orphan works place on rightsholders and users,” the comment said.


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