Copyright, and the Regulation of Orphan Works: A Comparative Review of Seven Jurisdictions and a Rights Clearance Simulation

Abstract

‘Orphan works’ are works in which copyright still subsists, but where the rightholder, whether it be the creator of the work or successor in title, cannot be located.

The problem with Orphan Works is that people refrain from using them, as for example for inclusion in another work, or for digitization and distribution over the internet, for fear of liability. This is how mass digitisation projects aimed at preserving cultural heritage and granting unprecedented access to forgotten works are facing a gridlock.

The paper aims to offer a clearer understanding of how orphan works are regulated and priced in other jurisdictions, in order to explore a range of policy options and identify possible solution to ensure that “parents” are fairly remunerated if they re-appear, and users are incentivised to access and exploit registered orphan works.

The paper consists of two parts. Part I undertakes a comparative international review of actual or proposed orphan works legislation, and identifies key characteristics of orphan works licensing schemes. Part II investigates the potential effects of such schemes by conducting a simulated rights clearance exercise for six scenarios (establishing licence terms and fees for specific commercial and non-commercial uses), and analysing the resulting dataset for effects of the characteristics identified in Part I.

The findings suggest that different regulatory approaches should be taken for commercial and non commercial uses (and users), and the need for a more structured and consistent approach in governing orphan works that is reflected in the pricing and duration of licences, and in the costs of running any licensing system.

Keywords: Orphan Works, Copyright, Mass Digitisation, Right Clearance, Cultural Heritage

JEL Classification: K33