International Intellectual Property

International Intellectual Property

A Handbook of Contemporary Research

Research Handbooks in Intellectual Property series

Edited by Daniel J. Gervais

International Intellectual Property: A Handbook of Contemporary Research provides researchers and practitioners of international intellectual property law with the necessary tools to understand the latest debates in this incredibly dynamic and complex field. The book contains both doctrinal analyses and groundbreaking theoretical research by many of the most recognized leading experts in the field. It offers overviews of the major international instruments, with specific chapters on the Berne and Paris Conventions, the Patent Cooperation treaty and several chapters that discuss parts of the TRIPS Agreement. The book can also be used by students of international intellectual property to obtain useful knowledge of major institutions and instruments, and to gain an understanding of ongoing discussions.

Chapter 6: Orphan works: A comparative and international perspective

Katharina de la Durantaye

Subjects: law - academic, intellectual property law, public international law

Extract

In the last decade, orphan works have entered the spotlight of global copyright debate. The issue behind orphan works, though, is not new. From the early days of modern copyright law, rights holders of some protected works were unknown; others were impossible to find. Their works, left without an owner to negotiate with (and thus orphaned), could not be lawfully exploited if the use required permission of the copyright owner. The reasons for orphan works’ current “fame” are partially legal and partially technological: over the past decades, copyright protection has expanded both in scope and in duration. Today, more works are protected, and for a longer period of time, than ever before. Since, as a rule, the older (and less valuable) a work, the harder it is to find its rights holder(s), chances are that more works will become orphans. Simultaneously, a number of countries – most notably the U.S. – which previously requested the fulfillment of formalities as a precondition for copyright protection have abolished such requirements. While admittedly problematic in some respects,formalities such as notice and registration requirements publicly document the ownership status of copyrighted works and thus function as safeguards against orphanage. Meanwhile, digital technologies not only make it easier to separate information about rights holders from copyrighted works; they also enable users, be they public libraries, commercial enterprises, or private individuals, to exploit copyrighted works on a massive scale.

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