An ‘orphan work’ is a piece of work – such as a painting, music, a book, or a film – that has copyright but whose author or owner is either unknown/unidentified or cannot be traced. For users that desire to use orphan works for commercial or non-commercial reasons, orphan works may be a significant challenge.
When the owner of a copyrighted work is unknown, the work might become “orphaned.” This might occur for a variety of reasons. For example, the author may never have been publicly recognized, the work may have been published anonymously, or the work may have never been published at all. Otherwise, the author’s identity may have been known at one point, but the data has been lost. For instance, it is not always possible to identify who inherited the copyright and now owns it. When the owner of a copyrighted work cannot be found, the work might become “orphaned.” Old pictures or articles that have been preserved in library collections for years are examples of orphaned works.
Orphan works can also be informal, collaborative, or indefinite. In today’s digital age, such works are very prevalent. Blogs, online sites, and wikis are typically developed informally, with the help of dozens of people who are difficult to track down.
Why do orphan works pose a problem?
To utilize an orphan work, a potential user must devote significant time and effort to locating the owner. The search procedure is both expensive and time-consuming, and it frequently yields no results. Furthermore, if the user decides to utilize the work after suffering the exhausting search, he/she faces either significant monetary damages or an injunction. As a result, the expense of searching, combined with the risk of being held liable for infringement, becomes prohibitive. As a result, researchers, artists, authors, and other creators will avoid utilizing the work, even though in many situations, orphan work copyright holders do not exist or would not object to their works being used.
For example, a filmmaker who wishes to use copyright-protected music in a documentary will be unable to do so if the song’s copyright owner is either unknown or cannot be located. That is unless your use of the work is permitted by an existing copyright exemption, you cannot use the work, at least not without infringing copyright, if you don’t know whom to approach for permission.
In short, neither the owner nor the user enjoys the property, resulting in a “lose-lose” scenario. The potential user misses out on the possibility to produce and profit from a new work, the copyright owner misses out on the chance to receive a license fee, and the general public is denied access to the new and future works generated by the new user.
Causes of the problem
The orphan works problem is primarily the result of two substantial improvements in copyright law throughout the twentieth century: first, the removal of formalities and registries as a requirement for securing copyright in line with the Bern Convention. The second reason is the copyright’s prolonged lifespan. In the United Kingdom, the copyright has been extended from 14 to 70 years after the author’s death. Only works created before 1925 have fallen into the public domain in the United States and works created after 1925 will fall into the public domain until 2021, according to current legislation. While these improvements have offered greater protection and perhaps greater incentive to authors, they have also made it more difficult for the public to utilize and identify the owner of copyrighted works, therefore increasing the problem of orphan works.