Who Owns the Orphans? Property in Digital Cultural Heritage Assets
P. Torremans, Research Handbook on Copyright Law, 2nd Edition, 2018, Edward Elgar: Cheltenham & N. H’ton, pp. 359-390
18 Pages Posted: 14 Mar 2018 Last revised: 23 Mar 2018
Date Written: March 13, 2018
The zeitgeist of this century and the foreseeable future is not only to celebrate humanity’s cultural heritage but to also preserve and maintain it for future generations, whilst ensuring its current accessibility to the public. This task is vested in libraries, museums, archives and other memory institutions. Cultural heritage institutions involved in research, archival, data mining, preservation and access activities have complained that one of the greatest impediments to their digital activities involve ‘orphan works’ and/or ‘out-of-commerce’ works. This is due to the fact that the copyright status of works (including printed literature, visual works, photographs, recordings, films and other ephemera which reflect humanity’s culture and history), is unclear due to the inability to identify or locate the copyright owner. This has led to the fear that some of these works may not be available for public access due to the magnitude of research required to obtain copyright clearance of such works. Conversely, there is a justified concern from authors that the notion of cultural rights, with the accompanying rhetoric as to the need to access all forms of intangible heritage, is being employed in order to enable free and uncompensated use of copyright works. This paper adopts a comparative law approach to look at the rationales for the dilemma, and then turns to analyse the traditional and more radical solutions adopted in different jurisdictions. It concludes that the issue of orphan works is a small part of a wider sphere of interests and disputes. The solutions and options discussed are but one strand of coping with the issue of orphan works, lying as they do within a wider species of cultural heritage and properties laws, especially in relation to the issues of provenance and ownership.
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