The Orphans, the Market, and the Copyright Dogma

My paper The Orphans, the Market, and the Copyright Dogma: A Modest Solution to a Grand Problem is now posted on SSRN. I presented an earlier version at the Berkeley Orphan Works and Mass Digitization Symposium last April. Here's the abstract:

This article proposes a modest common law solution to the orphan works problem: works that are still under copyright but whose owners cannot be easily located. Most discussions on the orphan works problem focus on the demand side: on users’ inability to locate owners. However, this article looks also at the supply side and shows that the problem of orphan works arises not only because users find it prohibitively costly to locate owners, but also because under a strict permission-first rule copyright owners, who do not internalize the full social cost of forgone uses, face suboptimal incentives to maintain themselves locatable. Yet, copyright owners are usually the least-cost avoiders of the orphan works problem, and like in many other areas of law, should be encouraged to take steps to reduce the extent of the problem. The article shows how considering the locatability of the owner of an infringed work at the remedy stage and tweaking the appropriate remedy will encourage owners to remain locatable, and why this solution is preferable to other proposed solutions. The article also discusses the tendency to treat the requirement to seek permission before using as a dogma, and why this dogmatic view of copyright impedes simple and efficient solutions and leads to adoption of grand solutions that are ineffective at best and harmful at worst.

The final version will be published in the Berkeley Technology Law Journal.