In response to requests by several Members of Congress in January 2005, the U.S. Copyright Office agreed to examine issues surrounding "orphan works." Orphan works are copyrighted works whose owners are difficult or impossible to identify and/or locate. The Copyright Office issued a Notice of Inquiry requesting public comment from interested parties on the subject. The Office accepted written comments and hosted public roundtable discussions on the topic. In January 2006, it issued its Report on Orphan Works, which includes proposed legislative language to address the problem identified. Hearings were held in the 109 th and 110 th Congresses on the orphan works problem. This report surveys the findings of the Report on Orphan Works ("Report"), considers the Copyright Office's proposed amendment to the Copyright Act to address the issue, and analyzes introduced orphan works legislation in the 109 th and 110 th Congresses. No similar legislation has yet been introduced in the 111 th Congress. The constitutionally authorized grant of a limited monopoly to copyright holders is intended "To promote the Progress of Science and useful Arts" by producing incentives for creative works and their dissemination to the public. Ultimately, it is the public interest that supports allowing copyright holders to financially exploit the value of their creative efforts by controlling access to protected work. Someone who wants to exercise one or more of the copyright holder's exclusive rights in a copyrighted work must obtain permission to do so. The terms for usage and recompense, if any, are negotiated and agreed to by the rights' holder and the prospective user. When an owner cannot be identified or located, a protected work is an "orphan" work. Many believe that orphan work status renders a work inaccessible. The inaccessibility arises from the risk of liability that a user might incur for copyright infringement if and when a copyright owner subsequently appears: First, the economic incentive to create may be undermined by the imposition of additional costs on subsequent creators wishing to use material from existing works. Subsequent creators may be dissuaded from creating new works incorporating existing works for which the owner cannot be found because they cannot afford the risk of potential liability or even of litigation. Second, the public interest may be harmed when works cannot be made available to the public due to uncertainty over its copyright ownership and status, even when there is no longer any living person or legal entity claiming ownership of the copyright or the owner no longer has any objection to such use. This risk of infringement may be particularly burdensome when a creator incorporates protected work into a new adaptation or transformative work. How then is public policy best served by facilitating the public's access to and use of such a work? And how best to define what constitutes an orphan work for infringement purposes, to facilitate access to orphan works, and to promote their use without vitiating the copyright or unfairly appropriating the work into the public domain? Copyright law is the engine driving a vast private market of rights' holders and users. The structure of the law in many ways shapes the intellectual property (IP) marketplace for negotiations between owners and users, but it does not control all aspects of it. Notifying the public of ownership is the responsibility of the rights' holder. Determining whether a work is protected and identifying the actual owner of the copyright (who may or may not be the creator) is the responsibility of the prospective user. But the identification process can be extremely complicated, difficult, and in many cases, prohibitively costly. There are many components to the determination of whether something is likely to be covered by copyright . The prospective user must first make a preliminary determination as to whether a work is indeed copyrighted or has passed into the public domain. Changes to the term of copyright effected by repeal of the 1909 law and adoption of the 1976 Act, subsequent extensions to the term, and the abandonment of "formalities" (discussed infra ), all work to complicate calculations of the likely subsistence of copyright, particularly with respect to works created prior to 1978. Although registration with the U.S. Copyright Office is most authoritative, there is no universal copyright registry. Various registries or databases exist to allow identification of copyright holders in various industries or mediums, but they are essentially voluntary, so checking with a database may not be dispositive regarding copyright status and/or ownership. Furthermore, because IP is indeed property, through sale, assignment, or bequest, over time, ownership rights may be transferred. Older works of minimal commercial value may essentially be neglected or abandoned. Finding a copyright owner for them can be challenging. Under the 1909 Copyright law, there were many specific actions, i.e., "formalities," that needed to be taken by the creator/owner in order to create a valid copyright. Failure to do so could void the copyright. Among the essential formalities were posting of a notice of copyright on a work and registration with the U.S. Copyright Office. At the expiration of the first 28-year term of copyright, a renewal had to be filed to extend protection for another 28-year term. Observing formalities as a prerequisite to creating a valid copyright was abandoned under the 1976 Copyright Act. Under current law, a copyright is created automatically when the creative expression is fixed in tangible form. Copyright formalities were rejected in the 1976 law for several reasons. The legislative history notes the concern that rigid formalities put an undue burden on creators, who could lose copyright protection in its entirety for failure to comply with a formality requirement. A primary goal, however, was to harmonize U.S. copyright law with international treaties and practice, where formalities are not a requirement for copyright protection. Nevertheless, changes to U.S. law significantly complicated the process of identifying copyright holders. One consequence of the formalities requirements associated with copyright creation was notice and registration. A search of copyright registration records was more—though not definitively—likely to help a prospective user determine both copyright status and owner information. Under the current law for works created after 1978, an owner may register a work at any time during the subsistence of the copyright. A work must be registered prior to the rights' holder bringing suit for infringement; registration is also necessary in order for a owner to seek statutory damages for infringement. In the event that a court finds copyright infringement, it may issue an injunction to prevent or stop it, and award monetary damages. Damages may be the actual value of lost profits, or damages set by statute, known as "statutory damages." Statutory damages prescribe amounts that may be significantly higher than actual damages for lost profits—from $750 to $150,000. The amount of statutory damages may be increased in cases where a court finds that infringement was willful or, correspondingly, reduced when it finds the infringement was "innocent," i.e., the infringer was "not aware and had no reason to believe that his or her acts constituted an infringement," or the infringer had reasonable grounds to believe that the use was a fair use under § 107. A court may also award court costs and attorneys' fees. In other words, registration, with its effect of creating a searchable record and thereby providing public notice of ownership, is not legally required to create a copyright, but to enforce it. The existence of statutory damages and the award of attorneys' fees facilitates enforcement of infringement liability by rights' holders when actual damages may not support the costs of litigation. By conducting stakeholder discussions and reviewing extensive submissions of comments, the U.S. Copyright Office's study considers the landscape surrounding orphan works. At the outset, it sets forth what were not considered to be orphan work problems, namely, situations where a prospective user contacted the owner but did not receive permission to use the work. The analysis also narrows the situations in which it views orphan works as presenting an insurmountable problem to prospective users. It delineates several provisions of the copyright law that might permit use of an orphan work (or any copyrighted work) absent an owner's permission: The "idea/expression" dichotomy, rooted in the First Amendment and codified at 17 U.S.C. 102(b), prohibits copyright protection for ideas, procedures, concepts, etc. that may otherwise be embodied in a copyright-protected work. This jurisdictional limitation on copyright protection may be especially useful to prospective users of works of non-fiction, and "utilitarian" works like computer programs, textbooks, manuals, etc. Fair use, codified at 17 U.S.C. § 107, permits limited use of copyright-protected work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. Other express exemptions in the Copyright Act at §§ 108, 110, and 117 allow specified uses of copyrighted works associated with preservation, education, and religious activities. The Report identifies many obstacles to identifying and locating copyright owners and assigns general categories of uses that appear to be most impacted by orphan works, namely, uses by "subsequent creators" who may create a derivative commercial work incorporating the orphan work; "large scale access uses" by institutions such as libraries that make available a wide body of work to the public; "enthusiast" uses by individuals who have an interest in a particular work, subject, or artist; and "private" uses, the most common illustration being someone who wishes to reproduce a family photograph or make a potentially infringing use of obsolete or orphaned computer software. The Report explains that the 1976 Copyright Act arguably exacerbated the orphan works problem by abandoning formalities such as renewal registration, and why the international copyright regime to which the United States is a signatory both precludes a re-adoption of formalities and limits the scope of permissible exemptions to the copyright holders' rights. The study reviews solutions proposed by those involved in the orphan works dialogue. It groups and considers them in four categories, described in the Report as follows: • Solutions that already exist under current law and practice.