Orphan work
An orphan work is a
Extent
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 held about 25 million orphan works.
Impact
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 or 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
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.[5] 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.[5] Some works are deliberately published in ways that make them orphan works (or make certain rights to them "orphan rights"). In particular, all anonymously self-published works are by definition orphan works, regardless of how much revenue they are generating for their authors through advertising or other means. Authors of orphan works argue that these modes of publishing and of earning revenues from orphan works are increasing, and are especially attractive to "whistleblowers, leakers, writers on controversial or stigmatized topics, and writers who fear harassment or retaliation if they are 'outed' or can be identified or located."[6]
Specifics by country
Canada
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 the [holders of] the copyright".[7] As of June 2023, the Board had issued 321 such licenses[8] and denied 36 applications.[9]
European Union
The European Commission (EC), the executive branch of the European Union (EU), created a report on Digital Preservation of Orphan Works and Out-of-Print Works in 2007.[10]
On 4 June 2008, European representatives of museums, libraries, archives,
In October 2012 the European Union adopted
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, acknowledged the directive as "a start", but offered this criticism of the resulting policy:[15]
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—nonexistent rightsholders. 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 rightsholder.
By 2018, six years after the enactment of the directive, around 6,000 works had been entered into the orphan works registry that it created.[16] Critics cited the low numbers as evidence "that the EU approach to orphan works is unreasonably complex and won’t adequately address the problem it’s trying to fix," namely enabling mass digitization efforts.[17]
United Kingdom
On 29 October 2014, the Intellectual Property Office (IPO) launched an online licensing scheme for orphan works.[18][19] It differs from the EU's directive (which no longer applies in the UK)[20] in several aspects, e.g. by allowing anyone instead of just cultural institutions to submit works, while however imposing application and license fees.[16] A launch press release by the IPO was entitled "UK opens access to 91 million Orphan Works", but four years later, only 144 licenses had been granted, covering 877 works.[16] On the 31st December 2020, at midnight, after the end of the Brexit transition period and when the UK left the EU, the orphan works exception, transposed from the EU Directive, was removed from the UK's legislative framework and ceased to apply. Naomi Korn, a PhD researcher at the University of Edinburgh is currently analysing the impact of this regulatory change.
United States
Other nations
Hungary,[21] India,[22] Japan,[23] Saudi Arabia,[24] and South Korea[25] have established state licensing options for orphan works.
See also
References
- ^ ISBN 978-0-262-02619-2.
- ^ 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 by Naomi Korn (PDF). JISC Collections Trust. April 2009. p. 9. Archived from the original (PDF) on 2009-11-18. Retrieved 2020-07-06.
- ^ National Writers Union (March 5, 2021). "NWU comments on discussion draft, Digital Copyright Act (DCA) of 2021" (PDF).
- Computerspielemuseumin Berlin estimates that around 50 % of their collection consists of at least partial orphans.
- ^ ISBN 978-0-19-513762-0.
- ^ National Writers Union (March 5, 2021). "NWU comments on discussion draft, Digital Copyright Act (DCA) of 2021" (PDF).
- ^ Copyright Act, R.S.C., 1985, c. C-42, s. 77, retrieved on 2023-06-07 from Justice Laws Website.
- ^ "Unlocatable Copyright Owners". Copyright Board of Canada. 2023. Retrieved 2023-06-07.
- ^ "Unlocatable Copyright Owners". Copyright Board of Canada. Retrieved 2023-06-07.
- ^ 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.
- ^ "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.
- ^ "Memo - Orphan works - FAQ". europa.eu. European Commission. Retrieved 27 May 2014.
- Humboldt Universität zu Berlin. p. 120. Retrieved 2016-01-18.
- ISBN 978-1-316-56526-1.
- ^ ISSN 2056-6700.
- ^ Zeinstra, Maarten (2016-02-16). "Research: Orphan Works Directive does not work for mass digitisation". International Communia Association. Retrieved 2020-01-04.
- ^ "Apply for a licence to use an orphan work". www.gov.uk. IPO UK Government. Retrieved 29 October 2014.
- ^ "Millions of unseen 'orphan' artworks to be put on show" by Adam Sherwi], The Independent, 29 October 2014
- ^ "Orphan works and cultural heritage institutions".
- ^ "1999. évi LXXVI. törvény a szerzői jogról" [Act No. LXXVI of 1999 on Copyright]. §§ 41/A–41/K, Act No. LXXVI of 1999 (in Hungarian). National Assembly of Hungary. Retrieved 2020-09-22.
- ^ Art. 31a, Indian Copyright Act.
- ^ Art. 67, Japanese Copyright Act.
- ^ Art. 16, Copyright Act of Saudi Arabia.
- ^ South Korean Copyright Act, Art. 47.