Julian Sanchez says that's the case when it comes to a certain kind of copyright designation:
The ruling rejecting the Google Books settlement suggests, plausibly enough, that any general solution to the problem of orphan works is more properly the task of Congress than any kind of private agreement. I’ll admit to being a bit puzzled about why this hasn’t already happened. I take it for granted that our current lunatic copyright policy can be adequately explained by the fact that concentrated incumbent entitiesRIAA and MPAAare in a better position than dispersed consumers and amateur creators to lobby for legislation reflecting their (perceived) interests. But it seems like everyone ought to have an interest in resolving the orphan works problem.
Content owned by incumbent content firmsand especially content currently generating revenueis by definition not “orphan works.” Producers affiliated with those firms would also benefit from the presumption that they may make use of works whose owners cannot be found. And in the cases where there actually is a current living rights holder, they may well become aware of a highly successful adaptation of their work (and thus enjoy the benefit of royalties) that would simply not exist under the status quo because good-faith efforts to locate them failed. Who’s the rational veto player here?
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