The Orphan Works Problem: The Copyright Conundrum of Digitizing Large-Scale Audiovisual Archives, and How to Solve It

Abstract

This article examines the problem of “orphan works” against the background of various projects for mass-digitization of audiovisual content. Orphan works are works for which the copyright owners cannot be identified or located. The fact that a particular work is “orphaned” makes it impossible to clear the rights and to legally reutilize the work. This article describes and evaluates six different possible regulatory solutions to the orphan works problem, including extended collective licensing and compulsory licensing. The article concludes that if one wants to make the vast European audiovisual cultural heritage available for future usage, regulatory intervention is indispensable.

This article is based on a study by the Institute for Information Law (IViR) that was commissioned by the European Commission; P. Bernt Hugenholtz et al., “The Recasting of Copyright & Related Rights for the Knowledge Economy” (2006), available at <http://www.ivir.nl/publications/other/IViR_Recast_Final_Report_2006.pdf, and on a subsequent article by Stef van Gompel, “Audiovisual Archives and the Inability to Clear Rights in Orphan Works,” IRIS plus (Supplement to IRIS - Legal Observations of the European Audiovisual Observatory), 2007–4 available at http://www.obs.coe.int/oea_pub/iris_plus/iplus4_2007.pdf.en

Notes

¹Art. 5(2)(c) of the EU Copyright Directive provides for an exception in favor of archives or publicly accessible libraries, educational institutions or museums, to make specific acts of reproduction for non-commercial purposes. This allows Member States to introduce a statutory exception to permit these institutions to make analog or digital reproductions for purposes of preservation or restoration of works available in their collections. Most European countries have adopted provisions of this kind. EU Copyright Directive – Directive 2001/29/EC of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society, OJ L 167/10, June 22, 2001. Retrieved September 29, 2009 from http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:167:0010:0019:EN:PDF

²In Europe and the United States, copyright expires 70 years after the author's death. Neighboring rights expire 50 years after the performance of a work, or 50 years after the first publication of a sound recording.

³ Commission Recommendation 2006/585/EC of 24 August 2006 on the digitisation and online accessibility of cultural material and digital preservation, OJ L 236/28, August 31, 2006. Retrieved September 29, 2009, from http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:236:0028:0030:EN:PDF

⁴Results online consultation “i2010: Digital Libraries,” http://ec.europa.eu/information_society/activities/digital_ libraries/doc/results_online_consultation/en.pdf, p. 5.

⁵Rights management information covers not only information identifying the work, the author and the copyright owner, but also information indicating the terms and conditions of use of a particular work, and any numbers or codes that represent such information. See Art. 7(2) EU Copyright Directive.

⁶Art. 67 Japanese Copyright Act; art. 47 South Korean Copyright Act; art. 31a Indian Copyright Act; art. 190 UK Copyright, Designs and Patents Act.

⁷Orphan Works Act of 2006, H.R. 5439, 109th Congress, 2nd Session, May 22, 2006. The bill died with the end of the Bush presidency. Later two other bills were introduced, i.e., the Orphan Works Act of 2008, H.R. 5889, 110th Congress, 2nd Session, April 24, 2008, and the Shawn Bentley Orphan Works Act of 2008, S. 2913, 110th Congress, 2nd Session, April 24, 2008. Both of these bills are still pending.

⁸In the United States, users face the risk of becoming liable for payment of statutory damages of up to US$150,000 for each willfully committed infringement (Art. 504 US Copyright Act). In Europe, on the other hand, damages are ordinarily based on the actual losses incurred by the infringement.