Elgar Law, Technology and Society series
Edited by Jessica C. Lai and Antoinette Maget Dominicé
Chapter 11: Digital v analogue: reconceptualising the orphan works problem for cultural heritage institutions
For cultural heritage institutions (CHIs) the divide between material and immaterial is epitomised by the impact of digital technologies. Ideally, in line with theories of cultural property and the objectives of CHIs, CHIs should be able to make use of the enhanced opportunities provided by digital technologies for effective archiving and preservation and for increased public accessibility to their collections. In practice, however, due to large numbers of works in their collections that are copyright orphan works, CHIs are legally unable to do this because effective digital archiving requires that many copies be made of the physical item. The orphan works problem is particularly serious for “born-digital” works, such as computer software, whose material platforms are in danger of physical deterioration or commercial obsolescence before the copyright expires on the digital creative work. Permitted uses for archiving and preservation in copyright laws generally permit only a limited category of CHIs to make a single copy of a work for preservation purposes. Furthermore, the permitted uses strictly limit the availability of such a copy to the public. In essence, a value judgment has been made concerning the kinds of culture that are worthy of preservation and the institutions that may preserve them. For example, many institutions that tend to collect early “born digital” works are excluded from the permitted uses for archiving and preservation. A similar value judgment is made by CHIs themselves. Wary of the unsupportive legal environment for digitisation, some CHIs have adopted a policy of accepting works for their collections only if the copyright owner of the work signs a release permitting the CHI to digitise the work for its objectives. Arguing that such a policy creates a gate-keeping role which cannot be justified by cultural heritage theories, the chapter describes and critiques recent proposals and initiatives to address the orphan works problem more generally. It explains why they may not be practicable for budget-constrained CHIs and argues that solutions for orphan works that adhere rigorously to existing interpretations of the three-step test in the TRIPS agreement are never going to be suitable for CHIs. The chapter concludes with a reminder that a solution for “born-digital” orphan works is urgently needed.
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