Fixing one orphan work problem and creating a new one

Matt Skelton (US Copyright Office) at a conference in DC on Friday describing the process for their work on orphan works that resulted in a "Report on Orphan works" with recommended statutory language (see http://www.copyright.gov/orphan/):

"There was a request by Hatch and Leahy last year... and then more support from Congress. Then, in January, a notice of inquiry and public comments and then reply comments. 720 initial comments and 140 reply comments. And then we had several roundtables in Washington DC... and in California with 43 participants. ... in Berkeley 21 participants. And then we had informal meetings...about 17 meetings with 24 organizations. And now the January report.."

Everyone is pretty happy the Copyright office is trying to solve the orphan works problem (you know how frustrating it is when you want to get permission to use a work but you cannot find the owner...who might be dead or just not responsive). Almost everyone, some trade associations, like media photographers, do not think it is in the interest of their members who'd rather not compete with "whatever" is available on the internet (sometimes even for free!).

But it looks as if the Copyright Office is quite satisfied about their proposed solution and recommendations: orphan works problem is real, it is elusive to quantify and describe, some situations may be adressed by existing law but many are not...so, new legislation is necessary (specific language is in the report). To summarize, they recommend a reasonnable treshold requirements for diligent search (before use) and limitation of remedies if the user can prove he conducted a reasonnable search.

One can only wish that 1 ) they would follow the same process of various public consultations regarding their work on creating new rights for webcasters (see WIPO proposed treaty that would include webcasting) and that 2) they address (before it's too late?)...the orphan works problems that will certainly come up with creating a new layer of rights on the internet. It would not make sense to fix the orphan (copyright) work problem while creating a new orphan (webcast) work problem at the same time. Unless some people are just enjoying the process?