At Public Knowledge, Jef Pearlman addresses the issue of orphan works, highlighting certain limitations inherent in the registry, and limitations imposed by virtue of the nature of the settlement.

... this settlement only applies to Google. Even in the ideal case where the [Books Rights Registry] BRR offers similar rights to non-Google organizations on nondiscriminatory terms – a situation which I sincerely hope will come to pass – the BRR can only offer third parties licenses for those authors in the registry. It is only the opt-out nature of a class action law suit that allows the AAP and Authors Guild to license the rights of millions of rights holders who are not actively involved in the case and often don’t even know they have rights to defend. Short of getting sued and settling (in a non-collusive fashion), no one else can pull this off. And since the case didn’t go to judgment, anyone else who wants to make fair use of these works will face uncertain legal ground and the possibility of a massive copyright suit. (As a side note, this means that Google’s license and the BRR’s collection on behalf of missing authors isn’t really a private sector solution, as it would have been completely impossible without the court’s assistance.)

This structure effectively limits the BRR to authors represented by the AAP or the Authors Guild or those who individually register themselves. If I want to use an orphaned book, and the rights holder does not identify himself or herself in the BRR, then I’ll be no better position after the settlement than I am right now. I still will run the risk of an expensive lawsuit if the rights holder shows up, and will have no way to mitigate that risk.

The Authors Guild represents more than 8,000 authors, and the AAP has over 300 member organizations covering an unknown number of authors. On the other hand, according to Brewster Kahle, founder of the Open Library (and member of our board), the over 20 million books listed on Open Library were written by over 5 million authors. Some of these, of course, wrote works that are now in the public domain, and others are represented by the BRR.

But how many of those 5 million authors of in-copyright books are unknown to Open Library, unreachable, and unrepresented? How many of these are going register with the BRR? What about the artists in media other than books?