Proliferation of the problem of orphan works across the world

• Date: 01 November 2019
• Author: Bzhar Abdullah Ahmed,Kameran Hussein Al‐Salihi
• DOI: http://doi.org/10.1111/jwip.12135
• Published date: 01 November 2019

© 2019 The Authors The Journal of World Intellectual Property © 2019 John Wiley & Sons Ltd

J World Intellect Prop. 2019;22:419–439. wileyonlinelibrary.com/journal/jwip

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DOI: 10.1111/jwip.12135

ORIGINAL ARTICLE

Proliferation of the problem of orphan works

across the world

Bzhar Abdullah Ahmed

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Kameran Hussein Al‐Salihi

Department of Law, Faculty of Law, Political

Science and Management, Soran University,

Soran, Iraq

Correspondence

Bzhar Abdullah Ahmed, Depa rtment of Law,

Faculty of Law, Political Science and

Management, Soran Univ ersity,

Soran 44001, Iraq.

Email: bzhar.ahmed@s oran.edu.iq

Abstract

The article examines the problem of orphan works in

general. Orphan works are copyrighted works whose

owners are difficult or impossible to identify and/or locate

after a diligent search has been conducted. The article

introduces the nature of the problem and how it emerged.

There are various reasons for the creation of the problem

of orphan works and the authors undertake a q ualitative

approach to a thorough investigation that reveals that

orphan works have become a significant challenge. The

authors also reveal the legal and technological factors

behind the creation of the problem and suggest ways to

prevent its recurrence in the future. It is understood that

orphan works undermine the goal of copyright law because

one of the objectives of providing authors with copyright

protection is that the public should, in return, be able to

access the protected work and take benefit from it;

however, the problem of orphan works deprives the public

of a means of accessing these works.

KEYWORDS

digitisation, orphan works, unidentified, unlocatable

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INTRODUCTION

Copyright laws provide authors with exclusive rights under which no one is allowed to use their work without their

prior authorisation. However, users may face a situation, known as orphan works, in which the copyright owner is

unlocatable or unidentified, which makes it difficult or even impossible for the user to obtain the relevant licence.

Orphan works are copyrighted works whose owners are difficult or impossible to identify and/or locate after a

diligent search has been conducted (Hansen, 2011).

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The problem of orphan works is today regarded as one of the major challenges to copyright law (Lu, 2013). This

issue has become more apparent as a result of the Google Book Search case, which indicated that orphan works

place a significant barrier before any large‐scale digitisation project (Lu, 2013). Hansen (2011) states that the

problem of orphan works is due to changes in the way copyright protection is granted to owners and in the forms

that users employ copyrighted works. These changes are an elimination of the formality requirements for granting

copyright protection to authors and users are now more willing to use digital forms of works. It is now indisputable

that the elimination of formality requirements in copyright law was a main cause of the orphan works issue. As

formality requirements were removed from copyright laws, copyright has been transformed from an “opt‐in”to an

“opt‐out”system, in which all works become instantly subject to copyright protection once they are articulated in a

tangible medium (Goldenfein & Hunter, 2017). Although the issue of orphan works may have been in place in

theory from the time the first copyright law was implemented, the problem has been exacerbated in recent years

(Hansen, 2011).

This study examines the problem of orphan works in general. It introduces the concept of orphan works by

explaining the nature of, problems with, and causes of creating these works and how to prevent their creation. It

also analyses the benefits of making orphan works accessible to the public.

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NATURE OF ORPHAN WORKS

Orphan works are referred to as copyrighted works whose owners are difficult and/or impossible to identify or

locate after conducting a diligent search (Lu, 2013). Consequently, people who wish to use or adapt such works

cannot obtain authorisation from the copyright owner. This places barriers to the preservation of old works that

form our cultural heritage and restricts the free exchange and circulation of new ideas and knowledge (Henning,

2008). As a result, memory institutions and nonprofit libraries, for example, are reluctant to make orphan works

available because of the fear of being liable for the infringement of copyright law in the case of the reappearance of

the copyright owner. Institutions in this position cannot, therefore, serve their salient and primary goals as

repositories of human culture, history and knowledge (Urban & Hansen, 2013).

To analyse the nature of orphan works, is it first important to define what they are and to clarify ways in which

this problem has arisen. Therefore, the following subsections define orphan works and present ways in which such

works are created.

2.1

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Definition of orphan works

There is no single agreed definition regarding orphan works, as they are defined differently by different scholars.

For example, orphan works are referred to by the Report on Orphaned Works issued by the U.S. Copyright Office

in 2006 as “a term used to describe the situation where the owner of a copyrighted work cannot be identified and

located by someone who wishes to make use of the work in a manner that requires permission of the copyright

owner”(U.S. Copyright Office, 2006).

Thus, orphan works relate to a situation in which the identity of the owner of the copyright is not known or

cannot be located and, as a result, obtaining a licence from the copyright owner to copy such works is impossible

(Khong, 2007).

Moreover, a much simpler definition is given by Nolo’s Plain‐English Law Dictionary, which defines orphan works

as “works protected under copyright whose owners are difficult to locate—for example, a photograph taken of Elvis

Presley as a teenager, or a newspaper column from a 1950s newspaper”(Nolo & Hill, 2009, p. 302). Orphan works

are also defined as those which are protected by copyright but the copyright owner cannot be identified or found

(Goldberg, 2010). Foreman defines orphan works as those works which are still under copyright protection but for

which it is difficult or impossible to contact the copyright holder (Foreman, 2012).

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