One of the most basic justifications for all forms of property rights, something every first-year law student is taught, is that these rights encourage the efficient use of property. Because property (usually) is a scarce resource, exclusive ownership rights help encourage people who value and will use the property. For the same reason, restraints on the ability to sell property are generally discouraged — we support the “free alienability” of property so that those who do not wish to fully exploit a piece of property will be able to transfer that land (as it usually is) to someone who will. In short, the rules around real property exist because of the foundational belief that fields should be tilled and planted, and houses should be lived in.
In this context of why we have property rights at all, it is very easy to see and understand that the problem in copyright of so-called orphan works is a fundamental failure of the rights system itself.
In addition to rules that encourage property owners to sell that they do not intend to use, nearly all forms of property rights regimes also have doctrines that will take the property away from an owner who declines to exploit what he or she owns. The classic doctrine that does this is adverse possession, which can actually transfer title to a piece of land from the owner to a person whose only claim is that he is using the property while the owner is not. In North Carolina, for example, a person who openly possesses and uses a piece of land that is not her own for a period of at least fifteen years can ask the courts to transfer title to her. That is, owners of real property can lose their ownership simply because they did not use the property.
Real property is not the only property rights regime that has such a doctrine. Ownership over personal property can also be lost, through the doctrine of abandonment. If I leave my bicycle in a local park for long enough, without any indication of my claim to it or my intention to ever use it again, I may have abandoned the bicycle and it could become the property of another person who finds it, claims it and uses it. Although we do not usually think about it this way, property rights are a “use it or lose it” legal regime.
Perhaps someone will suggest that these use it or lose it rules make sense in the realm of tangible property, where scarcity is really a problem, but would be inappropriate for intangible, intellectual property. But that distinction does not work, because two other intellectual property regimes, trademark and patent, also have “use it or lose it” rules. A trademark owner can lose their rights in a mark through neglect — one must defend the ability of the mark to identify specific goods or services, or else the mark will be lost because it is not serving the purpose for which trademarks are granted. And patent rights can likewise be lost, if the rights holder does not pay the regular maintenance fees that are required.
In fact, as far as I can tell, the only form of property interest that cannot be lost even if it is never used is copyright. Unlike with land, chattels, trademarks, or patents, a copyright holder can hold on to their rights for nearly a century without using them at all, and still without losing them. And it is this bizarre feature of copyright, which distinguishes it from all other forms of property rights, that creates the problem of orphan works.
Of course, our copyright law used to have the same kind of mechanism that exists in other property regimes; renewal of copyright served as a very simple way to indicate a continued intention to use the property right, and without renewal the right was lost. With that renewal requirement, copyright stayed on a par with other forms of property. But we removed that requirement when we joined the Berne Convention, which forbids “formalities.” That probably made very little sense (and we have ignored other requirements of the Berne Convention in spite of our adherence to it in 1988) because it created the orphan works problem and undermined one of the most basic justifications — efficiency through use — for allowing exclusive property rights in the first place.
The best solution to the orphan works problem would simply be to reinstate the renewal requirement. That could probably be done without violating our obligations under Berne, if the requirement was imposed only on rights holders who are U.S. citizens. That would be only a partial solution, of course, but it would be better than the current situation and would address the oddity that copyright is a more ironclad right, at this point, than any other form of property rights.
There are also more “gentle” ways to address this problem. Given the current situation, where we give copyright holders a grip on those rights that is stronger than any other form of property, it would be possible, and eminently fair, to ask them to voluntarily take a simple step to make their intention to continue using their property known to others. A registry, or perhaps different registries for different genres of copyrighted works, would allow rights holders to assert their continued interest in their rights, and make it much easier for potential users of the work to find and contact the appropriate rights holder if they are seeking permission for their use. This would be a very non-intrusive way to address the problem of orphan works, especially in the context where other forms of neglect of property can result in forfeiture.
If a registry regime were voluntary and did not carry the threat of forfeiture that exists in other property regimes, what kind of “teeth” could be built into a registration system? The most sensible approach would be for judges, when considering a fair use claim over a piece of copyrighted work, to take into consideration the “find-ability” of the right holder. If the rights holder has taken any positive steps to be known and locatable, a claim of fair use should have to meet the same threshold that is currently erected for such defenses. But if the rights holder has done nothing, has “sat on their rights,” to use a old-fashioned phrase that is amazingly applicable to the current copyright system, then it should be much easier to establish fair use.
When Congress considered an orphan works solution a few years ago, it wanted to put the onus on users to search for the rights holder. But when we put copyright in the proper context of other property rights regimes, it should be obvious that these obligations should be a two-way street. All other property rights require some kind of indication that the rights holder will use the rights, or else they can lose them. In copyright, it would be fair, and a very small burden, to require a similar gesture — inexpensive and easy – of continued interest on the part of the rights holder. This is especially true if the only consequence of failing to make that gesture would be easier use, rather than a loss of the rights. Copyright would still not be on a par with other property rights in terms of encouraging, indeed demanding, efficient use of the property, but the balance would be redressed a little.