Orphan Works:International Approaches &

Possible Solutions

Elena Althaus, Alexis Davis, Seth Huber, Amy Welch

Orphan Works: A Definition

A work is said to be "orphaned" when some of its legal copyright holders cannot be identified or found after a diligent search.  

Unless a work was created before 1923, chances are it is under copyright.

  

(Society of American Archivists, 2009)

The Orphaning of Works

Berne Convention, 1976• Authors were no longer required to register works

with copyright officeo Berne Convention forbids "formalities" that

make it more difficult for authors to obtain copyright

o With no registration, tracking down copyright holders becomes more difficult

(http://www.wipo.int/treaties/en/ip/berne/summary_berne.html)

Orphan Works: Finding Mom or Dad

Who created the work? Who owns the work now? And where is that owner located?

  

(Society of American Archivists, 2009)

Useful Resources: WATCH File

WATCH: Writers, Artists, and Their Copyright Holders

        •  http://tyler.hrc.utexas.edu/

Useful Resources: FOB

FOB: Firms Out of Business• Contact information for the successors to

publishers and publications that have gone out of business

• http://tyler.hrc.utexas.edu/fob.cfm

The Big Issues

Diligent Search• What exactly does "diligent" mean? • How much documentation is required to protect

the user? • Who gets to decide when a search has been

thorough enough?

• Should commercial uses and non-commercial uses have different requirements?

 

Diligence = Expensive CMU, 2003 study• Staff time and expenses totaled $78 per book to

acquire copyright permission for one project• Publishers wanted another $50-$300 per book

for temporary licensing  Wayne State University, 2000 study • $24,500 to find copyright holders for 1,000

articles• $26,000 in permission fees from publishers 

(Covey, 2005)

The Big Issues

Usage• Who should be allowed to use orphan works?

• Should allowed non-profit uses be different than allowed commercial uses?

 

The Big IssuesRoyalties• How, and by whom, should the royalty rate be

determined? • Should royalties be paid into a fund prior to

using a work, or should they be paid only if a copyright holder appears?

 • If paid up front, who manages that fund? • How long should copyright holders have to

claim their royalties?

The Big Issues

Moral Rights• What requirements should there be for

attribution on orphan works? • Should those works make it obvious that they

are used as orphans and provide license information?

 • What recourse should be available to a

copyright holder to stop usage of a work under a license agreement he/she doesn't like?

Canada

Existing System

• licensees must show "reasonable effort“•non-exclusive license granted for determined period of time•license can only be granted for published works•effective only within reach of Canadian laws •Copyright Board of Canada (CBC) reviews applications to determine whether reasonable effort was expended

(Bezos, 2007)

Canada

Existing System

•CBC determines reasonable royalty for each license in case copyright owner is established. Royalty may be held by licensee or given to copyright collective society.•Royalties may be claimed up to 5 years after expiration of license•from 1985 - 2007, 197 issued. 6 denied

(Bezos, 2007)

Pros                            Cons

• supplemental licensing

• more applications are accepted than not

• Reasonable licensing fees

• "reasonable efforts" to locate the owner of the copyright is not defined

• Only applies to published works

Japan

Existing System 

• Published orphan works may be exploited under authority of “compulsory license” issued by Commissioner of Agency for Cultural Affairs

• Royalties are determined by Commissioner and correspond to ordinary royalty rates

• Requirement of “due diligence” in search for proper copyright owner. Due diligence must be proven for approval of license

(Bezos, 2007)

Japan

Existing System • Royalties are collected before use of the work and

held in case owner shows up • Copyright owner has 3 months to petition for

adjustments to the royalty rate upon discovering use• Licensee must mark the work noting it is used under a

compulsory license, must note date of license's issue • License is announced in Official Gazette • Japan is signatory to Berne and TRIPs. There have

been no charges of noncompliance for this system.  

(Bezos, 2007)

Pros                            Cons

• Royalties collected up front

• License announced in national publication

• Royalties correspond to standard rates, users know what to expect

• Lack of clarity on what "due diligence" requires

• Short window of time for copyright holders to announce themselves 

Denmark, Sweden, Finland, Norway, and Iceland

• Extended collective licensing system o encourages copyright owners to register works in

order to be able to negotiate license terms and avoid work being identified as orphaned

o Can be invoked with organization comprising “substantial number” of authors for type of work

o Must include opt-out possibility in order to not violate Berne and TRIPS

(Bezos, 2007)

Denmark, Sweden, Finland, Norway, and Iceland

• Collective Management Organizations (CMOs)o represent copyright holders for types of works o authorized to grant licenses for their format of

orphan works o Manage royalties for creators represented o Can collect on behalf of foreign and domestic rights

holders o Royalties held for 5 years in case owner comes

forward o Unclaimed royalties channeled

to public works programs

(Bezos, 2007)

Pros                            Cons

• Extended licensing agreement a possible solution to issues of digitization because works aren’t orphaned

• Established CMOs means that searchers have a place to start

• Rights owners must prove that efforts to find them have not been sufficiently meticulous

• Requirements for forming a CMO unclear; could result in confusion if too many exist

European Union Proposal

• Includes a definition of diligent search

• If one of several authors can be located, it is not an orphan work

• If a work is considered an orphan in one member state, it shall be recognized as such by all other member states

• Member states must ensure that a rights-holder can put an end to orphan status at any time

European Union Proposal

• With only a few exceptions, libraries,educational establishments or museums, archives, film heritage institutions and public service broadcasting organizations, may not use orphan works for purposes other than their public interest missions.

• These missions include preservation, restoration and the provision of cultural and educational access to works contained in their collections.

Reform Efforts: United States

• 2005: US Copyright Office agreed to investigate the issue

 • 2006: Orphan Works Bill of 2006 and the

Copyright Modernization Act introduced in Congress, but not addressed prior to the end of the session

 • 2008: Shawn Bentley Orphan Works Bill passed in

the Senate, but died in the House

Where do we go from here?

• Define "diligent search"o Diligence should be based on the number and

type of sources searched o Search must be documented and produced

upon request if copyright holder comes forward

 • Make searches easier

o ARROW Project: Public-private partnership, consortium of libraries, publishers and CMOs -establishing systems to maintain information about exchange rights, orphan works, and a network of rights-clearance mechanisms

Where do we go from here?

• Define a lower search threshold for non-profit entities, unless they are using a work to generate funds (ie. selling copies for fundraising purposes)

 • Create licenses that allow different uses for

non-profits than for commercial entities • Safe Harbor provision: Non-profit entities are

not prosecuted, provided they conducted diligent search and cease using a work if a copyright holder appears

Where do we go from here?• Burden of proof should be on copyright holder to

prove they own copyright • Royalties are paid into a general fund managed

by same public-private partnership as owner database.

• Known rights holders are paid up-front; royalties are held for 5 years in case a copyright owner appears

 • Unclaimed royalties go into a fund to help non-

profits fund copyright searches.

Questions?

References• Accessible Registries of Rights Information and Orphan Works towards Europeana. ARROW. Retrieved July

22, 2011 from http://www.arrow-net.eu/• Bezos, S. M. (2007). International approaches to the orphan works problem. Retrieved from

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=989213. • Bibb, M.L. (2009). Applying old theories to new problems: How adverse possession can help solve the

orphan works crisis. Vanderbilt Journal of Entertainment and Technology Law (12) 1, 149-181.• Boyle, J., & Jenkins, J. (2005). Orphan works analysis and proposal: Submission to the Copyright Office --

March 2005. Durham, NC: Center for the Study of Public Domain. Retrieved from http://www.law.duke.edu/cspd/pdf/cspdproposal.pdf.

• Briston, H., Greene, M. A., Henderson, C., Hirtle, P., Jaszi, P., Maher, W., . . . Proffitt, M. (2009). Orphan works: Statement of best practices. Chicago, Ill.: Society of American Archivists. Retrieved from http://www.archivists.org/standards/OWBP-V4.pdf

• Center for the Study of the Public Domain. (2005). Access to Orphan Films. Durham, NC: Duke Law School. Retrieved from http://www.law.duke.edu/cspd/pdf/cspdorphanfilm.pdf

• Covey, D. T. (2005). Re: Response to notice of inquiry about orphan works, Federal Register (January 26, 2005), vol. 70, no. 16: 3739-3743. Pittsburgh, PA: Carnegie Mellon University. Retrieved from http://www.copyright.gov/orphan/comments/OW0537-CarnegieMellon.pdf

• European Commission. Proposal for a directive of the European Parliament and of the Council on certain permitted uses of orphan works. COM(2011) 289. Retrieved from: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0289:FIN:EN:PDF

References, continued• FOB: Firms out of business. Retrieved July 24, 2011, from http://tyler.hrc.utexas.edu/fob.cfm• Ginsburg, J.C. (2009). Contracts, orphan works, and copyright norms: What role for Berne and TRIPS?

Columbia Public Law & Legal Theory Working Papers. Paper 09162. Retrieved from: http://lsr.nellco.org/columbia_pllt/09162/.

• Huang, O. (2006). U.S. Copyright Office orphan works inquiry: Finding homes for the orphans. Berkeley Technology Law Journal 21 (1), 265-288.

• The MILE Project. Know your rights Conference [Video file]. (2009). Retrieved July 22, 2011, from http://www.dailymotion.com/themileproject#videoId=xaj0dx.

• Lang, B. (2010). Orphan works and the Google Books settlement: An international perspective. New York Law School Law Review, vol 55, 111 118.

• Shawn Bentley Orphan Works Act of 2008, S.2913, 110th Cong., 2nd Sess. (2008). Retrieved from http://www.opencongress.org/bill/110-s2913/show.

• World Intellectual Property Organization. Summary of the Berne Convention for the protection of literary and artistic works (1886). Retrieved July 24, 2011, from http://www.wipo.int/treaties/en/ip/berne/summary_berne.html

• Thompson, C. (2006). Orphan works, U.S. copyright law, and international treaties: Reconciling differences to create a brighter future for orphans everywhere. Arizona Journal of International & Comparative Law, 23(3), 787-852.

• Van Gompel, S. (2007). Unlocking the potential of pre-existing content: How to address the issue of orphan works in Europe?” International Review of Intellectual Property and Competition Law 38. 669–702.

References, continued• Visual art in America. (2008). Retrieved July 24, 2011, from

http://www.withersworldwide.com/news-publications/419/visual-art-america.aspx• Vuopala, A. (2010). Assessment of the orphan works issue and costs for rights clearance.

Luxembourg: European Commission, Information Society and Media DG, Access to Information Unit. Retrieved from: http://ec.europa.eu/information_society/activities/digital_libraries/doc/reports_orphan/anna_report.pdf.

• WATCH copyright file. Retrieved July 24, 2011, from http://tyler.hrc.utexas.edu/