Hetcher, Steven A. --- "The Emerging U.S. Approach to Orphan Works: A Partial Fault Standard for Copyright Infringement" [2012] ELECD 198; in Rosén, Jan (ed), "Individualism and Collectiveness in Intellectual Property Law" (Edward Elgar Publishing, 2012)

Book Title: Individualism and Collectiveness in Intellectual Property Law

Editor(s): Rosén, Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9780857938978

Section: Chapter 7

Section Title: The Emerging U.S. Approach to Orphan Works: A Partial Fault Standard for Copyright Infringement

Author(s): Hetcher, Steven A.

Number of pages: 19

Extract:

7. The emerging U.S. approach
to orphan works: a partial fault
standard for copyright infringement
Steven A. Hetcher1

One conventional manner of characterizing the dichotomy between indi-
vidualism and collectivism is that individualistic approaches opt for the
protection of individual rights over collective welfare interests, if and
when they conflict, while collectivist approaches opt for the reverse. This
abstract normative framework can be applied across a vast array of par-
ticular policy concerns. The one of interest here is the topic of orphan
works and their regulation ­ a growing concern.
Orphan works, defined generally as copyright-protected works for
which the owner is unknown or unlocatable, have presented a problem
to copyright as long as it has existed. For as soon as works are protected
under copyright, the possibility arises of potential uses of these works that
do not occur simply due to the inability to locate the owner in order to
secure authorization for use of the work.
The Copyright Office claims that the problem of inability to access
orphan works is getting worse, due to recent legislation, specifically the
recent addition of twenty years to the copyright term under the Copyright
Term Extension Act.2 The Report notes in passing that the problem
naturally became worse when the U.S. abandoned the "formalities" in
adopting the 1976 Act, as these required for more comprehensive record-
keeping.3 Implicit in the Copyright Office's message is the notion that
there is an inherent tension between the sort of ...