Definitions

works into lather

Orphan works

An orphan work is a copyrighted work where it is difficult or impossible to contact the copyright holder. This situation can arise for many reasons. The author could have never been publicly known because the work was published anonymously or the work may have never been traditionally published at all. The identity of the author could have been once known but the information lost over time. Even if the author is known, it may not be possible to determine who inherited the copyright and presently owns it. Nearly any work where a reasonable effort to locate the current copyright owner fails can be considered orphaned. However the designation is often used loosely and in some jurisdictions there is no legal definition at all.

Compulsory license schemes, which would exclude orphaned works from copyright protections, are rarely acceptable under international copyright treaties. Such schemes are only worthy of consideration when there are more significant concerns than orphan works, such as a risk of market failure due to very high costs in places like the satellite retransmission market.

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

United States

The "orphan works" problem arose in the United States with the enactment of the Copyright Act of 1976, which eliminated the need to register copyrighted works, instead declaring that all "original works of authorship fixed in any tangible medium of expression fall into copyright status. The elimination of registration also eliminated a central recording location to track and identify copyright-holders. Consequently, potential users of copyrighted works, e.g., filmmakers or biographers, must assume that many works they might use are copyrighted. Where the planned use would not be otherwise permitted by law (for example, by fair use), they must themselves individually investigate the copyright status of each work they plan to use. With no central database of copyright-holders, identifying and contacting copyright-holders can sometimes be difficult; those works that fall into this category may be considered "orphaned".

Public Domain Enhancement Act

The Public Domain Enhancement Act was introduced as House Bill 2601 for the United States 108th Congress in 2003 but never passed. It was reintroduced as House Bill 2408 for the 109th Congress in 2005 but died again. The bill would have released certain orphan works into the public domain if the copyright renewal registrations were not made as required.

Copyright Office study

In January 2006, the United States Copyright Office released a report on orphan works after researching the issue. The situation in the US is a result of the omnibus revision to the Copyright Act in 1976. Specifically, the 1976 Act made obtaining and maintaining copyright protection substantially easier than the 1909 Act. Copyrighted works are now protected the moment they are fixed in a tangible medium of expression, and do not need to be registered with the Copyright Office. Also, the 1976 Act changed the basic term of copyright from a term of fixed years from publication to a term of life of the author plus 50 (now 70) years. In so doing, the requirement that a copyright owner file a renewal registration in the 28th year of the term of copyright was essentially eliminated.

The Office noted that these changes were important steps toward the United States’ accession to the Berne Convention, which prohibits formalities like registration and renewal as a condition on the enjoyment and exercise of copyright. Moreover, there was substantial evidence presented during consideration of the 1976 Act that the formalities such as renewal and notice, when combined with drastic penalties like forfeiture of copyright, served as a “trap for the unwary” and caused the loss of many valuable copyrights. The Copyright Office found that these changes exacerbated the problem of orphan works: a potential user generally must assume that a work one wishes to use is subject to copyright protection, but without the Copyright Office's renewal registration records, cannot ascertain whether the work is still copyrighted or in the public domain.

The report recommended that the focus on developing legislative text to address orphan works should not obscure the fact that the Copyright Act and the market place for copyrighted works provide several alternatives to a user who is frustrated by the orphan works situation. Indeed, assessing whether the situations described to use in the comments were true “orphan works” situations was difficult, in part because there is often more than meets the eye in a circumstance presented as an “orphan works” problem. In most cases a user may have a real choice among several alternatives that allow them to go forward with their project: making noninfringing use of the work, such as by copying only elements not covered by copyright; making fair use; seeking a substitute work for which they have permission to use; or a combination of these alternatives. Even though some orphan works situations may be addressed by existing copyright law as described above, many are not.

The Copyright office has recommended new legislation which sets out limitations on the remedies that would be available if the user proves that they have conducted a reasonably diligent search and describes a threshold of requirements of a reasonably diligent search. Such a solution would fall short of releasing orphan works into the public domain, like the previous bill, but rather encourage prospective licensors to go ahead with an infringing project knowing in advance the maximum remedy they could be faced with.

Orphan Works legislation introduced

In May 2006, U.S. Representative Lamar Smith introduced H.R.5439, a bill aimed at addressing the issue of orphan works by providing limitations of remedies in cases in which the copyright holder cannot be located. However this bill was withdrawn in September 2006.

Subsequently in March 2008, a hearing was made in the US house of representatives aimed at reintroducing a broadly similar bill. And on April 24th, the bill was officially introduced to congress.

The full text of the Senate version of the 2008 Orphan Works bill (S.2913) is now available and Senator Patrick Leahy's introduction of the bill has been posted on his website. Section 3 introduces the idea of a Database of Pictorial, Graphic, and Sculptural Works and states:

The Copyright Office must create and undertake a certification process for the establishment of electronic databases of visual works. Certain requirements for any such registry are prescribed. The Copyright Office will post a list of all certified registries on the Internet.

A similar bill (H.R. 5889) is also in the House, which also calls for a database of pictorial, graphic and sculptural works.

The legislation was supported by a wide variety of organizations, including libraries, archives, academic institutions, and filmmakers.

Opposing the legislation were numerous art licensing organizations, arguing that

[t]he Copyright Office proposal would have a disproportionately negative, even catastrophic, impact on the ability of painters and illustrators to make a living from selling copies of their work...

In July 2008, the Artists Rights Society, the Illustrator's Partnership of America (IPA) and the Advertising Photographers of America (APA) submitted to congress a document titled, " Suggested Amendments to H.R. 5889: Orphan Words Act of 2008" The document outlined 12 admendments which the ARS, IPA and APA believe will decrease the potential negative impact of the Orphan Works Act.

Europe

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

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.

On June 4, 2008 European representatives of museums, libraries, archives, audiovisual archives and right-holders signed a Memorandum of Understanding, an orphan works legislation supported by rights-holders. It will help cultural institutions to digitize books, films and music whose authors are unknown, making them available to the public online.

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