Larry Lessig has written an op-ed piece that appears in the New York Times on Congress's consideration of a major reform of copyright law intended to solve the problem of orphan works. he characterizes the current attempt at reform as "both unfair and unwise."
It seems that this reform introduces so many layers of complexity into the determination of copyright status that it would inevitably quash potential use of works because no one could figure out the process or afford the time or expert opinion needs for the determination.
But precisely what must be done by either the “infringer” or the copyright owner seeking to avoid infringement is not specified upfront. The bill instead would have us rely on a class of copyright experts who would advise or be employed by libraries. These experts would encourage copyright infringement by assuring that the costs of infringement are not too great. The bill makes no distinction between old and new works, or between foreign and domestic works. All work, whether old or new, whether created in America or Ukraine, is governed by the same slippery standard.
The proposed change is unfair because since 1978, the law has told creators that there was nothing they needed to do to protect their copyright. Many have relied on that promise. Likewise, the change is unfair to foreign copyright holders, who have little notice of arcane changes in Copyright Office procedures, and who will now find their copyrights vulnerable to willful infringement by Americans.
The change is also unwise, because for all this unfairness, it simply wouldn’t do much good. The uncertain standard of the bill doesn’t offer any efficient opportunity for libraries or archives to make older works available, because the cost of a “diligent effort” is not going to be cheap. The only beneficiaries would be the new class of “diligent effort” searchers who would be a drain on library budgets.