||The neutrality of this article is disputed. (August 2013)|
|Intellectual property law|
|Sui generis rights|
An orphan work is a copyright protected work for which rightsholders are positively indeterminate or uncontactable. Sometimes only originator or rightsholder name(s) are known, yet contact is stymied by the exhaustive unavailability of sufficient further details. A work can become orphaned through rightsholders being unaware of their holding, or by their demise (e.g. deceased persons or defunct companies) and establishing inheritance has proved impracticable. In other cases, comprehensively diligent research fails to determine any authors, creators or originators for a work.
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. 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. Software which became an orphaned work is usually known as abandonware.
Orphan works are not available for use by filmmakers, archivists, writers, musicians, and broadcasters. Because rightsholders cannot be identified and located, historical and cultural records such as period film footage, photographs, and sound recordings cannot be incorporated in contemporary works. 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, for fear that a re-appearing rightsholder may sue them for damages.
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. Currently only a fraction of old copyrighted works is available to the public. Netanel argues that rightsholders 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.
Specifics by country
Canada has created a supplemental licensing scheme, under Section 77 of its Copyright Act, that allows licenses for the use of published works to be issued by the Copyright Board of Canada on behalf of unlocatable rightsholders, after a prospective licensor has made "reasonable efforts to locate [holders of] copyright". As of August 2008, the Board had issued 226 such licenses, and denied 7 applications.
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. The United States lost the arbitration and is currently[when?] paying undisclosed reparations to the WTO.
On June 4, 2008 European representatives of museums, libraries, archives, audiovisual archives and rightsholders signed a Memorandum of Understanding, 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. In 2009 the Strategic Content Alliance and the Collections Trust published a report on the scope and impact of orphan works and their effect on the delivery of web services to the public.
- Orphan film
- Orphan works in the United States
- Orphaned technology
- Public domain
- Copyright formalities
- Borgman, Christine L. (2007). Scholarship in the digital age: information, infrastructure, and the internet. MIT Press. p. 108. ISBN 978-0-262-02619-2.
- 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.
- Netanel, Neil (2008). Copyright’s paradox. Oxford University Press US. p. 200. ISBN 978-0-19-513762-0.
- "Copyright Act, R.S., c 77". Copyright Board of Canada. 2005. Retrieved 2010-02-17.
- "Unlocatable Copyright Owners Licenses Issued". Copyright Board of Canada. 2008. Retrieved 2009-07-20.
- "Unlocatable Copyright Owners Applications Denied". Copyright Board of Canada. 2009. Retrieved 2009-07-20.
- "Report on Digital Preservation, Orphan Works and Out-of-Print Works, Selected Implementation Issues". European Commission. 2007-04-18. Retrieved 2007-06-09.
- "Digital Libraries Initiative - High Level Expert Group (HLEG) | Europa - Information Society". Ec.europa.eu. Retrieved 2013-04-20.
- "Directive 2012/28/EU". Ec.europa.eu. Retrieved 2013-04-20.
- Art. 31a, Indian Copyright Act.
- Art. 67, Japanese Copyright Act.
- South Korean Copyright Act, Art. 47.