If the owner cannot be found, the only alternative for the potential user is to rely on fair use, which is problematic because of the indefinite nature of fair use and the fact that only a small portion of a work can be used in order for the use to be deemed fair. Therefore, the person who uses an orphan work runs the risk that the owner could appear and seek damages/injunction/attorney's fees. [U.S. Copyright Office. Orphan Works and Mass Digitization. Washington, DC, 2015.]
Problems associated with orphan works have been exacerbated by the "anti-formality" provisions incorporated into United States copyright law when the US became a signatory to the Berne Convention in 1989: in contrast to the law of copyright in the United States pre-Berne, all mandatory notice and registration requirements were eliminated, and at present, copyright owners no longer have to register their works or display notice on the work in order for the copyright to be valid, as was formerly required. [See Mary LaFrance, Copyright Law in a Nutshell (St Paul: Thomson/West, 2008), 123.] Other factors contributing to the problem of orphan works include the increased time duration of copyright (currently life of author + 70 years for individually-authored works), the expense involved in locating the owner, and situations where the copyright owner died but heirs cannot be found.
Many organizations are affected by the problem of orphan works: to illustrate, consider the case of a library that wants to digitize books in the collection, but the copyright owner cannot be found. Without obtaining permission from the copyright owner, the library runs the risk of legal repercussions. As a result, libraries, archives, and museums can be stymied in their efforts to provide full access to information. [Sohn, Gigi. "Orphan Works." Online presentation, University of Maryland University College, 2009.]
An increasing number of countries and jurisdictions have adopted legislation to address the problem of orphan works: in 2014, the European Union approved the Directive on Certain Permitted Uses of Orphan Works, which sets out rules for the use of orphan works. [U.S. Copyright Office. Ibid.] In the United States, numerous solutions have been proposed both in the US Senate and House of Representatives, but so far, none have been successful. To illustrate, the Shawn Bentley Orphan Works Act of 2008 was proposed in the US Senate but died in session. This law would have allowed an orphan work to be used legally if the user had made a reasonable search to find the owner, documented that the search was made, and displayed a symbol designating the work was an orphan work. [Sohn, Ibid.].
