Orphan Works: Mapping the Possible Solution Spaces

Posted by Alessandra Morgan on March 19, 2012 in Blog, Legal.

The Berkeley Digital Library Copyright Project recently released a white paper titled “Orphan Works: Mapping the Possible Solution Spaces”. This paper is the second in a series leading up to the Orphan Works and Mass Digitization: Obstacles and Opportunities, a symposium on April 12-13, 2012 in Berkeley, CA, that “aims to investigate copyright obstacles facing libraries and other like-minded organizations in their efforts to realize the full potential of making works available digitally.”

The paper examines prominent approaches to the orphan works problem, including the remedy-limitation approach, which provides “limited protection from both monetary damages and injunctive relief” for users who made a “good faith, reasonably diligent search to locate the [copyright] owner” before using the work. Both the US Copyright Office and the European Commission have considered or proposed remedy-limitation approaches to the orphan works issue.

The paper also examines the use of centrally administered licenses. This approach, already in use in India, Japan, South Korea, the UK, and Canada, allows for a governmental copyright board to license works that it identifies as orphans. Users may petition the board after a reasonable search and be granted a license to use the orphan work, where the fees, royalties, and licensing duration are determined by the copyright board.

Access and re-use systems tailored to fair use are reviewed, as are extended collective licensing (ECL) systems. ECL systems enable collective rights management organizations (CMOs) to license works of rightsholders “who are not members of the CMO itself, but whose works are representative of the types of works owned by CMO members.” Typically, orphan works rightholders cannot be part of a CMO since they cannot be identified, but under an ECL system, orphan works may still be licensed. Fees are still collected by the CMO, and are distributed to owners of orphan works as they are identified.

Lastly, the paper reviews broader copyright and policy reforms that may affect orphan works, including the re-invigoration of copyright formalities, which effectively “scale back the automatic grant of strong copyrights to owners that do not necessarily care to hold them”, and general updates and reforms to library, archive, and museum privileges under copyright law.

The full paper is available for download via SSRN.

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