The Orphans, The Market, and the Copyright Dogma: A Modest Solution to a Grand Problem

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, looking also at the supply side reveals 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. However, in many cases 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. Building on this insight, 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.