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How Blockchain Technology Could Help Solve Copyright’s Orphan Works Problem

Summary: Blockchain technology could play a helpful role in resolving the problem of so-called orphan works, which have elicited a great deal of hand-wringing in the copyright world.

Like the titular character in Dicken’s Oliver Twist, “orphaned” works are the cast-off children of authors or owners who no longer publicly claim any attachment to the works, either due to neglect, deliberate disavowal, or even death. In any event, orphaned works are those still subject to copyright protection but whose owners are impossible to identify or contact. Many of these works have little apparent value, but occasionally a third party will come along that wants to use the work.

In the United States, even though the Copyright Office maintains a registry designed to keep track of copyright ownership, millions of works still end up orphaned because registration is not mandatory for copyright protection and because registrations are often not updated to reflect changes in ownership. Without the benefit of knowing who the copyright owner is, secondary users face a dilemma: infringe by using an orphan work without a license or do not use the orphan at all. However, the ability of blockchain technology to indelibly affix ownership information to copyrighted works may open up a third way.

The epic Google Books litigation is a good reference point for understanding the possibilities and pitfalls of a blockchain registry for orphan works. Before the Second Circuit decided that Google’s mass digitization project was a fair use, Google attempted to reach a class settlement with book publishers. One of the key terms of the proposed settlement was the creation of an “independent” orphan-works fiduciary charged with setting prices and administering revenues in place of absent copyright owners (a digital work house, if you will). The court rejected this proposal outright, however, to avoid giving Google a monopoly on unlicensed use of orphan works. Instead, the court made clear that Congress should be in charge of administering orphan works and implementing a solution.

Blockchain technology, of course, can’t solve the whole orphan work problem on its own. It can’t, for instance, set statutory terms for using orphan works, provide guidance on the appropriate amount of diligent searching for owners must be before declaring a work orphaned, or untangle the thicket of international copyright issues. These questions are for Congress to figure out, assuming (generously, perhaps) that it has a desire to do so.

But what blockchain and related technologies can do — and this is important — is provide the infrastructure for a functional copyright orphanage. By creating a blockchain-based record for each orphan work in an orphan work registry, every transaction involving any use of a work will be definitively and indelibly recorded. If the copyright holder subsequently attempts to adopt an orphan work, there will be no doubt over who has used the work and how much revenue was collected. Moreover, any adoption of orphaned works will be recorded in the blockchain so that future users can deal directly with the owner. And if imposters claim ownership, their false claims will be recorded too so that the true owner can subsequently seek recourse.

For these reasons, blockchain technology offers administrative certainties that could become the foundation of a system that allows for controlled uses of copyrighted orphan works. The system likely would also need a distributed database for storage of copies of the works themselves. Properly set up, this system would be infinitely preferable than the status quo, which requires either uncontrolled copying or the total neglect of orphaned works.

Even better, blockchain could reduce (or even eliminate) the orphan works problem in the future. As Lance Koonce wrote in a prior post, blockchain technology creates an opportunity for the creation of a more reliable copyright registry since it can indelibly affix ownership information to a work and automatically update that information whenever ownership changes hands. Under this system, the number of orphan works would be greatly diminished since it would be nearly impossible for the work to become disconnected from the crucial information about its owner.

Indeed, as we’ve discussed in recent posts, over the past decade the number of authored works that are not registered with the Copyright Office — from iPhone photographs to memes to short blog posts –has skyrocketed. As data about the creator/owner of such works becomes disassociated with that content, this almost certainly means that the number of orphaned works is skyrocketing as well. Blockchain startups like Monegraph and Blockai and Verisart and others are filling a registration gap for these types of works, and Creative Commons-style licensing offers another means of trying to make ownership information stickier, and all of this points to an even more robust solution in the future where all works will be more immutably tied to their creation, ownership, and licensing information.

Our current reality is rather like a Dickens novel: by virtue of their unfortunate station, orphan works are neglected, abused and largely excluded from the polite society of cultural exchange. However, blockchain technology — which has the capacity to benefit existing orphan works and to eliminate the scourge in future — should be seriously considered as the nucleus of a new system that could bring about valuable reform.