Edited by Ruth Towse and Christian Handke
Chapter 26: Orphan works
Orphan worksí are works in which copyright still subsists, but where the rightholder, whether that be the creator of the work or successor in title, cannot be identified and located (US Register of Copyrights, 2006). In such cases a potential user cannot be sure if the rightholder would reject a licence for this particular use or if the work has just been abandoned by its creator (Mausner, 2007). This creates a challenge for copyright law. If the envisaged use, such as making a work available online, required permission, and such permission is lacking, the user may face claims of infringement. In addition, where the work includes subject matter protected by related rights (such as performances, films, sound recordings, broadcasts and databases), often consisting of several overlapping rights, permission is required from several different rightholders. The orphan works issue is not a minor legal difficulty. Regulatory intervention has been justified by the ënew sources of discoveryí made possible by large digital libraries (Directive of the European Parliament, 2012/28/EU: Recital 1). The UK Hargreaves Review (Hargreaves, 2011: 38) states: ëThe problem of orphan works ñ works to which access is effectively barred because the copyright holder cannot be traced ñ represents the starkest failure of the copyright framework to adapt.í Solutions appear to require that the copyright status be ascertained and priced with regard to each potentially orphaned artefact contained in a work, in order to ensure legal certainty within a jurisdiction.
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