Finding a home for orphan works

The existence of “orphan works” poses a dilemma for publishers: should they publish without the author’s consent, or resign themselves to the fact that a significant portion of our cultural heritage will not see the light of day?

“Orphan works” are a phenomenon that has been the focus of much attention recently. These are works for which it is impossible to determine the author (or other copyright holder) or to contact the author in order to obtain permission to use the work. According to some estimates, orphaned works represent as much as 40% of all works worldwide.

Works of any type may become “orphaned.” In practice the issue comes up most often with photographs, wartime chronicles, or anonymous illustrations, and to a lesser extent paintings, films and musical works. Works may become orphaned for many reasons, such as the lack of a register of works (along the lines of the trademark register), factual circumstances (the death of the author, wartime losses, and so on), fragmentation of the bundle of rights among numerous holders (as in the case of films), and the long period of copyright protection (generally 70 years after the death of the author).

The effects of orphaning of works are serious. The inability to obtain consent to use a work presents a dilemma worthy of Antigone: give up using the work altogether, or use the work at the risk that claims may be presented later by the copyright holder.

The discussion about how to deal with this issue is a reflection of the debate that has been going on for years surrounding the conflict between two interests: the interest of the creator or holder of the copyright (to reap the benefits of the activity) and the interest of society (to enjoy the broadest access to cultural goods). The question is how to open up archives full of orphaned works while at the same time remaining true to the droit d’auteur awarding creators a monopoly on use of their works.

Issues surrounding the problem of orphaned works will be discussed during a conference at the European Parliament on 16 November 2010, initiated by Polish EP members Róża Thun and Tadeusz Zwiefka, and Wardyński & Partners. The conference is also being held under the aegis of the EP’s Culture and Education Committee and Legal Affairs Committee.