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Orphan Works and the Search for Rightsholders: Who Participates in a
'Diligent Search'
Over the past several years, policy makers and private actors have
developed an evolving set of approaches for addressing the orphan works
problem — a problem that arises when “the owner of a copyrighted work
cannot be identified and located by someone who wishes to make use of the
work in a manner that requires permission of the copyright owner,”
preventing follow-on uses of works. These approaches usually attempt to
address the orphan works problem by employing some threshold mechanism to
differentiate true orphan works, to which the proposed solutions would
apply, from non-orphaned copyrighted works. Satisfying a “reasonably
diligent search” is one well-known formulation by which users can designate
works as orphaned and therefore subject to a proposed solution, though — as
this paper points out — alternative approaches certainly exist. Regardless
of the specific formulation, the search for rightsholders (or conversely,
the confirmation that no rightsholder can be located) is an integral
component of almost every orphan works proposal. This paper examines in
detail the core schemes for identifying rightsholders among the leading
orphan works regimes and proposals. Although these schemes differ across
many variables, three factors predominate: (1) who is expected to
participate in the search process, (2) the nature and extent of the
required search generally; and (3) specifically what types of resources,
tools, registries or other information-sharing mechanisms are required or
allowed.


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Source: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2208163
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Peter Kurilecz CRM CA
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