An orphan work is a
copyright
A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, education ...
-protected work for which
rightsholders are positively indeterminate or uncontactable. Sometimes the names of the originators or rightsholders are known, yet it is impossible to contact them because additional details cannot be found.
A work can become orphaned through rightsholders being unaware of their
holding, or by their demise (e.g. deceased persons or defunct companies) and establishing inheritance has proved impracticable.
In other cases, comprehensively diligent research fails to determine any authors, creators or originators for a work. Since 1989, the amount of orphan works in the United States has increased dramatically since some works are published anonymously, assignments of rights are not required to be disclosed publicly, and registration is optional and, thus, many works' statuses with respect to who holds which rights remain unknown to the public even when those rights are being actively exploited by authors or other rightsholders.
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.
Examples of orphan works include photographs that do not note the photographer, such as photos from scientific expeditions and historical images, old folk music recordings, little known novels and other literature.
Software
Software is a set of computer programs and associated documentation and data. This is in contrast to hardware, from which the system is built and which actually performs the work.
At the lowest programming level, executable code consists ...
which becomes an orphaned work is usually known as ''
abandonware
Abandonware is a product, typically software, ignored by its owner and manufacturer, and for which no official support is available.
Within an intellectual rights contextual background, abandonware is a software (or hardware) sub-case of the g ...
''. In 2015, the
Computerspielemuseum Berlin
The Computerspielemuseum () is a video game museum founded in 1997. From 1997 to 2000, it had a permanent exhibition in Berlin. Afterwards, it became an online only museum. In 2011 the museum reopened its permanent exhibition in Berlin's neighbor ...
estimated that around 50% of their
video game
Video games, also known as computer games, are electronic games that involves interaction with a user interface or input device such as a joystick, controller, keyboard, or motion sensing device to generate visual feedback. This fee ...
collection consisted of at least partial orphans.
Source code escrow Source code escrow is the deposit of the source code of software with a third-party escrow agent. Escrow is typically requested by a party licensing software (the licensee), to ensure maintenance of the software instead of abandonment or orphaning ...
can prevent software orphaning but is seldom applied.
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
fair use
Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests ...
).
Public libraries
A public library is a library that is accessible by the general public and is usually funded from public sources, such as taxes. It is operated by librarians and library paraprofessionals, who are also civil servants.
There are five fundamenta ...
, educational institutions, and
museums
A museum ( ; plural museums or, rarely, musea) is a building or institution that cares for and displays a collection of artifacts and other objects of artistic, cultural, historical, or scientific importance. Many public museums make these ...
that digitise old manuscripts, books, sound recordings, and film may choose to not digitise orphan works or make orphan works available to the public
for fear that a re-appearing rightsholder may sue them for damages.
Causes
According to Neil Netanel the increase in orphan works is the result of two factors: (1) that
copyright term
The copyright term is the length of time copyright subsists in a work before it passes into the public domain. In most of the world, this length of time is the life of the author plus either 50 or 70 years.
Length of copyright
Copyright subsists f ...
s have been lengthened, and (2) that copyright is automatically conferred without registration or renewal.
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.
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."
Specifics by country
Canada
Canada
Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
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
olders ofcopyright".
As of March 2019, the Board had issued 304 such licenses,
and denied 24 applications.
European Union
The
European Commission
The European Commission (EC) is the executive of the European Union (EU). It operates as a cabinet government, with 27 members of the Commission (informally known as "Commissioners") headed by a President. It includes an administrative body o ...
(EC), the civil branch of the
European Union
The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been des ...
(EU), created a report on Digital Preservation of Orphan Works and Out-of-Print Works in 2007.
On 4 June 2008, European representatives of museums, libraries, archives, audiovisual archives and rightsholders signed a
Memorandum of Understanding, calling for an orphan works legislation supported by rightsholders that would help cultural institutions to digitize books, films, and music whose authors are unknown, making them available to the public online.
In 2009 the
Strategic Content Alliance
Strategic Content Alliance is an initiative which works to improve the development of sustainable digital content originating from the UK public and not-for-profit sectors. The initiative was established to help build good practice across sectors t ...
and the
Collections Trust
The Collections Trust is an independent UK-based charity that works with museums, libraries, galleries and archives worldwide to improve the management and use of collections. It was established in February 1977 as the Museum Documentation Associa ...
published a report
on the scope and impact of orphan works and their effect on the delivery of web services to the public.
In October 2012 the European Union adopted
Directive 2012/28/EU on Orphan Works. It applies to orphan works that were created in the EU as printed works (books, journals, magazines and newspapers),
cinematographic
Cinematography (from ancient Greek κίνημα, ''kìnema'' "movement" and γράφειν, ''gràphein'' "to write") is the art of motion picture (and more recently, electronic video camera) photography.
Cinematographers use a lens to foc ...
and audio-visual works,
phonogram
Phonogram may refer to:
* A sound recording – see Geneva Phonograms Convention
* ''Phonogram'' (comics), a comic book by Kieron Gillen and Jamie McKelvie
* Phonogram (linguistics), a grapheme which represents a phoneme or a combination of phone ...
s, and works embedded or incorporated in other works or phonograms (e.g. pictures in a book). Under certain conditions, the directive can also apply to unpublished works (such as letters or manuscripts).
Whether orphaned
software
Software is a set of computer programs and associated documentation and data. This is in contrast to hardware, from which the system is built and which actually performs the work.
At the lowest programming level, executable code consists ...
and
video game
Video games, also known as computer games, are electronic games that involves interaction with a user interface or input device such as a joystick, controller, keyboard, or motion sensing device to generate visual feedback. This fee ...
s ("
Abandonware
Abandonware is a product, typically software, ignored by its owner and manufacturer, and for which no official support is available.
Within an intellectual rights contextual background, abandonware is a software (or hardware) sub-case of the g ...
") fall under the ''audiovisual works'' definition is a matter debated by scholars.
The Directive was influenced by a survey of the state of intellectual property law in the
United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and North ...
called the ''
Hargreaves Review of Intellectual Property and Growth Hargreaves is a surname, and may refer to:
* Aaron Hargreaves (born 1986), Canadian football player
* Adam Hargreaves (born 1963), British author of children's books & son of Roger Hargreaves
* Alberto Hargreaves, (born 1929) Portuguese architect ...
''.
James Boyle, one of the experts consulted for the Review, acknowledged the directive as "a start", but offered this criticism of the resulting policy:
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.
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.
United Kingdom
On 29 October 2014 the
Intellectual Property Office (IPO) launched an online licensing scheme for orphan works. It differs from the EU's directive (which no longer applies in the UK) in several aspects, e.g. by allowing anyone instead of just cultural institutions to submit works, while however imposing application and license fees.
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.
United States
Other nations
Hungary
Hungary ( hu, Magyarország ) is a landlocked country in Central Europe. Spanning of the Carpathian Basin, it is bordered by Slovakia to the north, Ukraine to the northeast, Romania to the east and southeast, Serbia to the south, Croatia a ...
,
India
India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the seventh-largest country by area, the second-most populous country, and the most populous democracy in the world. Bounded by the Indian Ocean on the so ...
,
Japan
Japan ( ja, 日本, or , and formally , ''Nihonkoku'') is an island country in East Asia. It is situated in the northwest Pacific Ocean, and is bordered on the west by the Sea of Japan, while extending from the Sea of Okhotsk in the north ...
,
Saudi Arabia
Saudi Arabia, officially the Kingdom of Saudi Arabia (KSA), is a country in Western Asia. It covers the bulk of the Arabian Peninsula, and has a land area of about , making it the fifth-largest country in Asia, the second-largest in the A ...
, and
South Korea
South Korea, officially the Republic of Korea (ROK), is a country in East Asia, constituting the southern part of the Korea, Korean Peninsula and sharing a Korean Demilitarized Zone, land border with North Korea. Its western border is formed ...
[South Korean Copyright Act, Art. 47.] have established state licensing options for orphan works.
See also
*
Copyright formalities
Copyright formalities are legal (generally statutory) requirements needed to obtain a copyright in a particular jurisdiction. Common copyright formalities include copyright registration, copyright renewal, copyright notice, and copyright depos ...
*
Orphan film
An orphan film is a motion picture work that has been abandoned by its owner or copyright holder; also, any film that has suffered neglect.
History
The exact origin of the term orphan film is unclear. By the 1990s, however, film archivists were ...
*
Orphaned technology
Orphaned technology is a descriptive term for computer products, programs, and platforms that have been abandoned by their original developers. Orphaned technology refers to software, such as abandonware and antique software, but also to comput ...
*
Permission culture Permission culture is a term often employed by Lawrence Lessig and other copyright activists such as Luis Villa and Nina Paley to describe a society in which copyright restrictions are pervasive and enforced to the extent that any and all uses of ...
References
{{DEFAULTSORT:Orphan Works
Copyright law
Intellectual property law