The ruling rejecting the Google Books settlement suggests, plausibly enough, that any general solution to the problem of orphan works is more properly the task of Congress than any kind of private agreement. I’ll admit to being a bit puzzled about why this hasn’t already happened. I take it for granted that our current lunatic copyright policy can be adequately explained by the fact that concentrated incumbent entities—RIAA and MPAA—are in a better position than dispersed consumers and amateur creators to lobby for legislation reflecting their (perceived) interests. But it seems like everyone ought to have an interest in resolving the orphan works problem. Content owned by incumbent content firms—and especially content currently generating revenue—is by definition not “orphan works.” Producers affiliated with those firms would also benefit from the presumption that they may make use of works whose owners cannot be found. And in the cases where there actually is a current living rights holder, they may well become aware of a highly successful adaptation of their work (and thus enjoy the benefit of royalties) that would simply not exist under the status quo because good-faith efforts to locate them failed. Who’s the rational veto player here?
UPDATE: Some interesting theories advanced in the comments here and over at Megan McArdle’s blog:
- Opposition is grounded on symbolic or “slippery slope” grounds: Industry wants to resist anything that could be viewed as a reversal of the persistent march toward ever greater copyright protection, and in particular, anything that would remind people that copyright is in many ways not like ordinary physical property, and exists primarily to maximize the stock of creative works available to the public, not simply to give authors maximal control as an end in itself.
- Some authors are more concerned with control than revenue: They simply do not want their works to be used without their express permission, whether or not they are currently getting any economic benefit from these works, and don’t want to be burdened with taking affirmative steps to “opt out.”
- There are particular difficulties with certain types of works, such as photographs, for which it’s more likely to be the case that the work is still enjoying an active commercial life, but someone in possession of a single copy is not able to easily locate the rights holder. (With books and films, of course, you typically at least have a title and author to search on.) Creators of these types of works fear that “orphan works” will become a loophole for infringers to avoid liability.
- Rights holders would prefer not to have their works face competition from more freely available orphan works, the stock of which is enormous. Again, this may be of particular concern with respect to things like stock photographs.
With the possible exception of the third item—which seems like a reason to devise some ad hoc solution for types of works where identification poses special problems—these don’t strike me as particularly compelling reasons to keep huge quantities of 20th century culture locked up, but your mileage may vary.