Introduction
Orphan work is like a piece of Art abandoned by its author; people are still determining who the owner is and where they can be found. It is under the ambit of copyright only without a known owner to ask for permission, full of latent creative potential yet stuck in a legal dilemma. Authors Guild, Inc. v. Hathitrust defines an orphan work as one that is out-of-print.[1] Orphan works are problematic in the legal sense, restraining the development and preservation of culturally significant materials. However, hundreds and thousands of other copyrighted items must still be utilized and trapped in the thorny web of licenses or abandoned by unenthusiastic owners. Such occurrences indicate an increasing need for legal policy reforms addressing protection of intellectual property rights and access to knowledge in this increasingly complex global market.
Through this blog, the author initially explains how copyright in orphan work developed its historical and legal foundation. Subsequently, modern problems are discussed because ownership and rights clearance could be more apparent, leading to a debate on possible solutions to these challenges and making way for viable legal and policy themes.
Lastly, the blog will explore case studies like Authors Guild vs. Google Books (2015), advocating for the use of orphan works in education and research over commercial gain while highlighting future challenges and opportunities for responsible use.
The Forgotten Legacy: Historical and Legal Overview of Orphan Works
The issue of orphan work became a concern with the increase in digitization, where libraries, museums and archives have come across massive works of such kinds. International treaties such as the Berne Convention (1886) and TRIPS Agreement (1995) protect creators’ rights but have yet to address the issue of orphan work, leaving member states to steer the problem on their own. On a similar note, The Berne Convention also introduced the doctrine of “automatic protection”, i.e. protection of creation from their inception, even without formal registration. This doctrine created a significant problem for orphan works since it is possible to retain protection even with lost information regarding ownership.
The United States tried to get a legal framework for Orphan work at the international level through the Orphan Works Act of 2008, which eventually did not pass. On the other hand, the EU’s Orphan Works Directive (2012) found another alternative for public institutions: they can use these works after a bona fide and diligent search for rights holders, usually for non-commercial purposes. The 2009 Collections Trust/JISC report In from the Cold estimated that there are approximately 50 million orphan works in public collections. Only a tiny fraction of orphan works have historically been used, because of the time required to complete the diligent search required to establish that the right owners are yet to be discovered.
Locked in Limbo: Legal and Practical Challenges of Orphan Works
The idea of Copyright in Orphan works comes with numerous challenges that restrict the possibility of using valuable cultural assets and innovations. One such is the problem with clearing rights; generally seeking permission to use or reproduce these works becomes almost impossible when the author cannot be traced. This lack of legal clarity prevents creative minds from engaging with orphan works, despite their potential to enrich education and culture severely. Therefore, we have countless ‘orphans’ i.e. potential works with historical value – that are hidden away from the public’s eye in libraries, museums and archives, thus severely undervaluing these resources and handicapping attempts at diversifying cultural memories.
When creativity leads to new work that demands borrowing, shared creation and cross-referencing, orphan works are wasted potential. The economic consequences are equally problematic: authors lose earnings when their works become orphaned and industries reliant on cultural products – the film industry, publishing, education, and others – have restricted access to valuable assets. All over the world, orphan works remain a sensitive issue, and it is the same for India because the Copyright Act of 1957, doesn’t have explicit provisions regarding the same. Despite the fair use doctrine, there is no definite reference as to what constitutes fair use; hence, the problem remains with measures to digitize and share Indian cultural heritage. To overcome such challenges, a harmonious approach is required to sustain the rights of copyright owners while promoting broader access to cultural resources.
Barriers to Access: The Core Issues of Orphan Works
The problems associated with orphan works can only be dealt by using legal, technological and policy intervention. One such form is Extended Collective Licensing (ECL) which authorizes Collective Management Organizations (CMOs) to grant licenses to identified and unidentified copyright owners. This system helps manage the mass digitization of orphan works and satisfies creators who want to access such works without being granted specific permissions. This process of ECL, provides a pragmatic solution by simplifying rights clearance, and has been effectively applied to countries such as Sweden and the UK to provide cultural institutions with the ability to use orphan works, as long as, in a case where the copyright owner comes forward, they get their share of the incentive.
Another feasible process can be the Orphan Works Licensing Scheme (OWLS), which allows national bodies to license the use of Orphan Works, after conducting a diligent search for the rights holder of such works. In the UK, the Intellectual Property Office (IPO) manages OWLS, through which, institutions may use orphan works by paying a licensing fee to any owner who may surface. OWLS offers a clear legal path for using orphan works, which could benefit countries like India, where a high number of cultural contents remains untouched due to a lacuna in the law governing the copyright of orphan works in the Copyright Act of 1957.
The problem can also be addressed through technological solutions such as Digital Copyright Exchanges. These marketplaces list the orphan works and provide information on their owners if the latter is found. The European Digital Library (Europeana) is a perfect example for this, as it allows for access to the orphan works in digital format, while observing the legal requirements that surround the use of such materials. As India approaches this problem, solutions such as, the digital exchange or the licensing scheme could improve access to valuable assets. More such initiatives at the international level, through different organizations such as the World Intellectual Property Organization (WIPO) could introduce more conformity to such attempts, so that orphan works could be made available and utilized globally without violating copyright legislation.
Unlocking Insights: Case Studies of Orphan Works
Orphan works have impacted various industries; one example is Google Books which digitized millions of books including Orphan Works, for public access. Nonetheless, there have been legal hurdles; in Authors Guild v. Google, the court ruled in 2015 that Google’s digitization efforts fell under fair use, especially for non-commercial purposes like research and education[2]. This case established a vital reference point; it showed how orphan works might be employed in projects for the mass digitization of books. Still, the problem of orphan works within Google Books is consistent in situations where rights holders could re-emerge, even though there is legal ambiguity in some regards.
In contrast, the problem of how we can actively utilize orphan works persists in the music and film industries. As in music, ownership rights are scattered across multiple entities, which are nearly impossible to track down in early 20th-century records. Likewise, the film industry faces issues with archival footage and early films where ownership is uncertain due to closed production studios or complex transfers of rights. Unlike Google Books, these industries are still exposed to legal and financial risks, proving that more legal changes and better licensing opportunities are required to reveal the full potential of orphan works.
Conclusion
In conclusion, Orphan works are similar to treasure chests with their doors sealed by, the legal counterpart of, a lost key. It is frequently hard to find copyright holders. Although such works may hold great potential for restoration or for becoming the subject of further creative work, they remain virtually locked in legal limbo and therefore, unavailable for public use. It slows the process of innovation and becomes a barrier to preserving cultural heritage. A few of the most impacted sectors include music and movie production sectors; old records and archive footage are possibly still untouched, yet, often no one has a clear idea or the right to use them. One result of the lack of a viable way to manage these rights is that, many worthwhile works still in a legal no-man’s land, unable to contribute to archival goals or ongoing creative work.
But there is hope; let’s end this with positive note. The function of legal locksmiths could well be served by mechanisms such as Extended Collective Licensing (ECL), Orphan Works Licensing Schemes (OWLS), and Digital Copyright Exchanges. These frameworks provide a means to free up orphan works for creative use, research and public domain – and in cases where it is clear that the original creators want to be paid for their work, they are! Thus, adopting such solutions may benefit countries such as India that leave orphan works in legal pandemonium – using these identified solutions may help restore previously buried content and prevent would-be lost pieces of culture from fading into oblivion. The time has come to resolve this issue and unlock the potential of these works.
[1] Authors Guild, Inc. v. HathiTrust, MANU/FESC/0677/2014,
[2] Authors Guild v. Google, Inc., 804 F.3d 202, 116 U.S.P.Q.2d (BNA) 1423 (2d Cir. 2015)
This blog is written by Ronaldo Das, LL.M. (Currently pursuing).