US Congress is currently debating legislation which will remove the penalty for copyright infringement if the creator of a work, after a diligent search, cannot be located. Libraries and archives are among the groups lobbying for the change to allow copying of so-called "orphan works".
"The proposal goes far beyond current concepts of fair use, and, as explicitly acknowledged by the Register of Copyrights in a recent congressional hearing, it is not designed to deal with the special situations of non-profit museums, libraries and archives. Rather, it would give carte blanche to infringers even if they wished to exploit an artistic work for commercial advantage.
The Copyright Office presumes that the infringers it would let off the hook would be those who had made a "good faith, reasonably diligent" search for the copyright holder. Unfortunately, it is totally up to the infringer to decide if he has made a good faith search.
And, the Copyright Office has made it clear that failure to register a work with these private companies would automatically render it an orphan, available to be copied by infringers with impunity.
While there are clear benefits to clarifying the situation with orphan works, and for protecting heritage organisations from the possible risks of publishing non-orphan works in good faith, it seems that as Obi Wan might say, this proposed legislation is not the solution we're looking for.