Lydia Pallas Loren has self-archived "Abandoning the Orphans: An Open Access Approach to Hostage Works" in SSRN.
Here's an excerpt:
Metaphors shape how we approach challenging legal issues. Reorienting the metaphor from "orphans" to "hostages" illuminates the real problem with copyright owners that cannot be located: lock-up of expressive works. Solving the hostage work problem requires creating protections for those who act as "special forces" and free the hostages. If an entity is not negligent in gathering and disclosing information that identifies a work as a "hostage work" and that entity provides an open access copy of the work together with the hostage freeing information, then that entity should be immune from monetary liability for infringement. Copyright owners should retain the ability to obtain injunctive relief to either correct inaccurate status or owner information, or obtain removal of the digital copy of the work from an open access database. This injunctive power would translate into an enforceable obligation of open access providers to update inaccurate information and remove works inappropriately designated as hostage works. For derivative work creators, courts should freely apply equitable doctrines to prevent inappropriate injunctive relief and limit the ability of later re-surfacing copyright owners to sue derivative work creators.
| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |
