A Handbook of Contemporary Research
Research Handbooks in Intellectual Property series
Edited by Daniel J. Gervais
Chapter 6: Orphan works: A comparative and international perspective
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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