Orphan Works

By Lydiate, Henry | Art Monthly, September 2008 | Go to article overview
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Orphan Works


Lydiate, Henry, Art Monthly


'Orphan works' are copyright works that have no identifiable or traceable owner under international and national copyright laws, and are therefore allowed to be freely copied and merchandised. These sensible arrangements were developed through international copyright treaties and conventions signed over the past 100 years or so, whereby governments of most of the world's nation states agreed to enact them into their respective national copyright legislations--including the legal right of artists of all other signatory states to enforce their copyrights in those foreign countries. The Berne Convention for the Protection of Literary and Artistic Works (Berne), signed in 1886 by the then leading industrial countries, was one of the first to aim for international consistency of approach and reciprocal enforcement. Berne has now been signed and implemented by all but a handful of countries throughout the world. But the US now appears to be putting at risk international consistency of approach and reciprocal enforcement. Orphan works legislation is currently being considered by the US Congress, which could substantially damage the copyrights of both US and non-US artists whose works were to be copied and merchandised in the US--if this Orphan Works Act/Bill were to become federal law.

The usual arrangements for dealing with orphaned works under Berne are straightforward: if a copyright work is anonymous or pseudonymous, or the author cannot be found by reasonable enquiry, it is reasonable to assume that the author died more than 70 years earlier, and so any copying of the work is permitted by law. (Copyright normally lasts for the author's lifetime plus 70 years after the year of the author's death.) In other words, the responsibility is placed on any prospective user of a copyright work to prove that they have undertaken duly diligent enquiries to trace the copyright owner in order to have reasonably concluded that the author died 70 or more years earlier. Such research must be undertaken before embarking on their copying or merchandising venture.

The US draft legislation would require prospective users of copyright works to conduct a 'good faith, reasonably diligent search' before declaring a work 'orphaned'; if the copyright owner subsequently appeared and claimed breach of copyright, financial compensation would be limited to 'fair market value'--a much lower level than would currently be the case. Creative artists' organisations in the US have recently mounted a campaign against the draft legislation, along the following lines.

The proposed new law would act as a 'perverse incentive' for prospective users of copyright works to declare them 'orphan'--prematurely, cynically and without duly diligent research--and effectively render them copyright free. Furthermore, if the creator subsequently emerged to claim breach of copyright, they would only be entitled to a 'reasonable' licensing fee. This would place the artist copyright owner in a far weaker bargaining position than is the case under the current law, because any threat of litigation would be hollow: the prospective user would know that the costs of a lawsuit would far exceed the cost of a 'reasonable' licensing fee. Then there is the very practical problem of conducting an image search. Unlike searches for literary works which are readily recognised by word search engines, Google Images, for example, currently relies only on file names to find targeted images and has not yet developed search technology for specific images.

One facet of the draft US legislation reveals the likely reason for its introduction: the draft bill would place the burden on artists to register their works (with some organisation) to prevent them being declared 'orphan'. The obvious organisation with which to register would be the US Copyright Registry--the very office that initiated, drafted and is driving the new legislation. Why would the Registry want to do this?

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