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Orphan works

Intellectual property law
Primary rights
Sui generis rights
Related topics

An orphan work is a copyrighted work for which the copyright owner cannot be contacted. In some cases, only the name of its creator or copyright owner is known, and no other information can be established.[1] A work can become an orphan because the copyright owner is unaware of their ownership, or the copyright owner has died, or the copyright owner is a company that has gone out of business, and it is not possible to establish to whom ownership of the copyright has passed.[2] In other cases, the author and origin of a work simply cannot be determined, even after great diligence has been conducted.

Contents

Examples

Precise figures of orphan works are not readily available, even though libraries, archives and museums hold a vast number of them. In April 2009, a study estimated that the collections of public sector organisations in the UK hold about 25 million orphan works.[2] Examples of orphan works include photographs that do not note the photographer, such as photos from scientific expeditions and historical images, old folk music recordings, little known novels and other literature.[1]

Naming

The term “orphan work” has been criticised for being used in a metaphor of a work as a child who needs protection from abuse and exploitation, and an orphan work as a child who’s lost its parent and needs somebody else to protect it.[3]

Impact

Orphan works are not available for use by filmmakers, archivists, writers, musicians, and broadcasters. Because the copyright owner cannot be identified and located, historical and cultural records such as period film footage, photographs, and sound recordings cannot be incorporated in contemporary works.[4] 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,[4] for fear that a re-appearing copyright owner may sue them for damages.[1]

Causes

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.[4] 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.[4]

Specifics by country

United States

See Orphan works in the United States.

Canada

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".[5] As of August 2008, the Board had issued 226 such licenses,[6] and denied 7 applications.[7]

European Union

The European Commission, the civil branch of the European Union, created a report on Digital Preservation of Orphan Works and Out-of-Print Works.[8]

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[when?] pending in the Congress. The United States lost the arbitration and is currently[when?] paying undisclosed reparations to the WTO.[9]

On June 4, 2008 European representatives of museums, libraries, archives, audiovisual archives and rightsholders signed a Memorandum of Understanding,[10] 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.[8] In 2009 the Strategic Content Alliance and the Collections Trust published a report[2] on the scope and impact of orphan works and their effect on the delivery of web services to the public.

In October 2012 the European Union adopted Directive 2012/28/EU on Orphan Works.[11]

See also

References

  1. ^ a b c Borgman, Christine L. (2007). Scholarship in the digital age: information, infrastructure, and the internet. MIT Press. p. 108. ISBN 978-0-262-02619-2. 
  2. ^ a b c In from the Cold: An assessment of the scope of 'Orphan Works' and its impact on the delivery of services to the public. JISC Collections Trust. April 2009. p. 9. 
  3. ^ Loren, Lydia Pallas (May 2012). Abandoning the Orphans: An Open Access Approach to Hostage Works (draft) (PDF) 
  4. ^ a b c d Netanel, Neil (2008). Copyright’s paradox. Oxford University Press US. p. 200. ISBN 978-0-19-513762-0. 
  5. ^ "Copyright Act, R.S., c 77". Copyright Board of Canada. 2005. Retrieved 2010-02-17. 
  6. ^ "Unlocatable Copyright Owners Licenses Issued". Copyright Board of Canada. 2008. Retrieved 2009-07-20. 
  7. ^ "Unlocatable Copyright Owners Applications Denied". Copyright Board of Canada. 2009. Retrieved 2009-07-20. 
  8. ^ a b "Report on Digital Preservation, Orphan Works and Out-of-Print Works, Selected Implementation Issues". European Commission. 2007-04-18. Retrieved 2007-06-09. 
  9. ^ http://www.wto.org/english/tratop_e/d ispu_e/1234da.pdf
  10. ^ http://ec.europa.eu/information_socie ty/activities/digital_libraries/other _groups/hleg/meetings/index_en.htm
  11. ^ Directive 2012/28/EU
(Sebelumnya) Organizational memory systemOrthophoto (Berikutnya)