|Sui generis rights|
Higher category: Property and Property law
An orphan work is a copyright protected work for which rightsholders are positively indeterminate or uncontactable. Sometimes the names of the originators or rightsholders are known, yet it is impossible to contact them because additional details cannot be found. 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. The Computerspielemuseum Berlin estimates that around 50% of their video game collection consists of at least partial orphans. Source code escrow can prevent software orphaning but is seldom applied.
In countries whose laws do not specifically allow for the use of orphan works, orphan works are not available for legal use by filmmakers, archivists, writers, musicians, and broadcasters. Because rightsholders cannot be identified and located to obtain permission, historical and cultural records such as period film footage, photographs, and sound recordings cannot be legally incorporated in contemporary works in such countries (unless the incorporation qualifies as fair use). Public libraries, educational institutions, and museums that 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. Only a fraction of old copyrighted works are 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.
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 (EC), the civil branch of the European Union (EU), created a report on Digital Preservation of Orphan Works and Out-of-Print Works in 2007. In 1998 with the passing of the Fairness in Music Licensing Act in the United States the European Commission brought an arbitration against the United States in the World Trade Organization (WTO) for violation of the Berne Convention. The WTO sided with the EC in 2000, and the US and EC announced a temporary settlement arrangement on 23 June 2003, with the Fairness in Music Licensing Act remaining in effect and the US paying to a fund established in the EU for the benefit of rights-holders. As of 7 May 2010, the US continues to file required status reports, with the WTO stating that they are working on a resolution with all parties.
On 4 June 2008, European representatives of museums, libraries, archives, audiovisual archives and rightsholders signed a Memorandum of Understanding, an orphan works legislation supported by rightsholders. It helps 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.
In October 2012 the European Union adopted Directive 2012/28/EU on Orphan Works. The directive applies to orphan works that were created in the EU as printed works (books, journals, magazines and newspapers), cinematographic and audio-visual works, phonograms, and works embedded or incorporated in other works or phonograms (e.g. pictures in a book). Under certain conditions, the directive can also apply to unpublished works (such as letters or manuscripts). Whether orphaned software and video games ("Abandonware") fall under the audiovisual works definition is a matter debated by scholars. The Directive was influenced by a survey of the state of intellectual property law in the United Kingdom called the Hargreaves Review of Intellectual Property and Growth. James Boyle, one of the experts consulted for the Review, praised the directive as a start, but offered this criticism of the resulting policy:
In brief, the scheme is heavily institutional, statist, and inflexible. Its provisions can really only be used by educational and cultural heritage institutions, only for non-profit purposes, with lengthy and costly licensing provisions designed to protect the monetary interests of—almost certainly—non-existent rights holders. The EU seemed never to grasp the idea that citizens also need to have access to orphan works, for uses that almost certainly present no threat to any living rights holder.
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The Computerspielemuseum in Berlin estimates that around 50 % of their collection consists of at least partial orphans.
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