The Orphan Works Chimera and How to Defeat it: A View from Across the Atlantic

Abstract

This article contends that the orphan works problem (the problem of unknown or untraceable owners of copyright or related rights) is a generic problem. It is not specific to a certain form of use, but has implications across the copyright spectrum. Yet, it manifests itself in different ways, depending on the type of use that is made of these works. The article consists of three parts. Employing the metaphor of the Chimera, a three-headed she-monster in ancient Greek mythology, Part I introduces the different ways in which the problem manifests itself and describes the legal uncertainty that the different categories of users of orphan works experience. The three categories of uses that the article distinguishes are: mass-digitization projects (the lion’s head), transformative and derivative uses (the serpent’s head), and small-scale incidental uses (the goat’s head). Part II argues that there is not one best approach to address the orphan works problem. Rather, it suggests adopting a multifaceted approach that would provide adequate relief for the different categories of users of orphan works. Part III concludes.

Keywords: copyright, orphan works, mass-digitization, transformative and derivative use, legislative approaches, voluntary approaches, European Union

JEL Classification: O34