| Intellectual property law |
|---|
| Primary rights |
| Copyright · authors' rights · related rights · moral rights · patent · utility model · trademark · geographical indication · trade secret |
| Sui generis rights |
| Database right · indigenous intellectual property · industrial design right · mask work · plant breeders' rights · supplementary protection certificate |
| Related topics |
| Societal views · orphan works · public domain · more |
An orphan work is a copyrighted work for which the copyright owner cannot be contacted. In some cases the name of the creator or copyright owner of an orphan work may be known but other than the name no information can be established.[1] Reasons for a work to be orphan include that the copyright owner is unaware of their ownership or that the copyright owner has died or gone out of business (if a company) and it is not possible to establish to whom ownership of the copyright has passed.[2]
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Despite a recognition that a vast number of orphan works exist in the collections of libraries, archives and museums precise figures are not readily available. In April 2009 a study estimated there to be around 25 million orphan works in the collections of public sector organisations in the UK.[3] Examples of orphan works include photographs which do not note the photographer, such as photos from scientific expeditions and historical images, old folk music recordings, little known novels and other literature.[4]
Orphan works are not available for use by filmmakers, archivists, writers, musicians, and broadcasters. Because the copyright owner can not be identified and located, historical and cultural records such as period film footage, photographs, and sound recordings cannot be incorporated in contemporary works.[5] Public libraries, educational institutions and museums, who digitise old manuscripts, books, sound recordings and film, may choose to not digitise orphan works, or make orphan works available to the public,[6] for fear that a re-appearing copyright owner may sue them for damages.[7]
According to Neil Netanel the increase in orphan works is the result of two factors: (1) that copyright terms have been lengthened, and (2) that copyright is automatically conferred without registration or renewal.[8] Currently only a fraction of old copyrighted works is available to the public. Netanel argues that copyright owners have "no incentive to maintain a work in circulation" or otherwise make their out-of-print content available unless they can hope to earn more money doing so than by producing new works or engaging in more lucrative activities.[9]
Canada has created a supplemental licensing scheme that allows licenses for the use of published works to be issued by the Copyright Board of Canada on behalf of unlocatable copyright owners, after a prospective licensor has made "reasonable efforts to locate the owner of the copyright".[10] As of August 2008, the Board had issued 226 such licenses,[11] and denied 7 applications.[12]
The European Commission, the civil branch of the European Union, created a report on Digital Preservation of Orphan Works and Out-of-Print Works.[13]
The European Commission also brought an arbitration against the United States in the World Trade Organization for the US violation of the Berne Convention with the passing of the Fairness in Music Licensing Act, a much less expansive law than the orphan works legislation currently pending in the Congress. The United States lost the arbitration and is currently paying undisclosed reparations to the WTO.[14]
On June 4, 2008 European representatives of museums, libraries, archives, audiovisual archives and rightsholders signed a Memorandum of Understanding,[15] an orphan works legislation supported by rightsholders. It will help cultural institutions to digitize books, films and music whose authors are unknown, making them available to the public online.[16] In 2009 the Strategic Content Alliance and the Collections Trust published a report[17] on the scope and impact of orphan works and their effect on the delivery of web services to the public.