copyright and 'orphan works'   (link)

http://www.pbp.net/~jnichols/copyrightchanges.html
Concerns have been raised, however, as to whether current copyright
law imposes inappropriate burdens on users, including subsequent
creators, of works for which the copyright owner cannot be located
(hereinafter referred to as ``orphan'' works). The issue is whether
orphan works are being needlessly removed from public access and their
dissemination inhibited. If no one claims the copyright in a work, it
appears likely that the public benefit of having access to the work
would outweigh whatever copyright interest there might be. Such
concerns were raised in connection with the adoption of the life plus
50 copyright term with the 1976 Act and the 20-year term extension
enacted with the Sonny Bono Copyright Term Extension Act of 1998.
The Copyright Office has long shared these concerns about orphan
works and has considered the issue to be worthy of further study. On
January 5, Senators Orrin Hatch and Patrick Leahy of the Senate
Judiciary Committee asked the Register of Copyrights to study this
issue and to report to the Senate Judiciary Committee by the end of the
year. Also in January, Reps. Lamar Smith and Howard Berman, the
chairman and ranking member of the House Judiciary Committee's
Subcommittee on Courts, the Internet and Intellectual Property, sent
letters to the Register supporting this effort. The Office is gratified
that Congress has shown an interest in this important issue and is
pleased to assist Congress in its efforts to learn more about the
problem and to consider appropriate solutions.
Prior to the 1976 Act, the term of protection was limited to 28
years if the copyright was not renewed. Under this system, if the
copyright owner was no longer interested in exploiting the work, or a
corporate owner no longer existed, or, in the case of individual
copyright owners, there were no interested heirs to claim the
copyright, then the work entered the public domain. Of course, it also
meant that some copyrights were unintentionally allowed to enter the
public domain, for instance, where the claimant was unaware that
renewal had to occur within the one year window at the end of the first
term or that the copyright was up for renewal. The legislative history
to the 1976 Act reflects Congress' recognition of the concern raised by
some that eliminating renewal requirements would take a large number of
works out of the public domain and that for a number of those older
works it might be difficult or impossible to identify the copyright
owner in order to obtain permissions. Congress nevertheless determined
that the renewal system should be discarded, in part, because of the
``inadvertent and unjust loss of copyright'' it in some cases
caused.\2\ More recently, in the mid-1990s, Congress heard concerns
that the Copyright Term Extension Act would exacerbate problems in film
preservation by maintaining copyright protection for older motion
pictures for which the copyright owner is difficult to identify.\3\
Also, in our study on Digital Distance Education published in 1999, the
Copyright Office identified several ``problems with licensing'' that
educators asserted in attempting to use copyrighted materials in
digital formats, including that ``it can be time-consuming, difficult
or even impossible to locate the copyright owner or owners.'' \4\