Copyright law aims to promote the dual goals of incentivizing production of literary and artistic works, and promoting public access and free speech. To achieve these goals, Congress has implemented a policy that acknowledges the rights of both the copyright holder and the public, which vest with the fixation of the work. However, as Congressional action has strengthened copyright protection, the rights of the public have been narrowed. Orphan works – works to which the copyright owner cannot be located or identified – present a unique problem, in that achieving free access and use of the works is often impossible. This note argues that the public has a recognizable right in both gaining access to and using orphan works – a right which emanates from, but is tangential to, the First Amendment right to free speech.
Libby Greismann, The Greatest Book You Will Never Read: Public Access Rights and the Orphan Works Dilemma, 11 Duke Law & Technology Review 193-211 (2012)