INTRODUCTION

Copyright law protects the rights of authors or creators in the work produced by them. Due to
the evolution of copyright law, these rights automatically vest in the creator of the work at the
time of creation and subsist for a certain number of years after his death. However, the
prevalent legal framework means that registration is either not mandatory or not required at
all. This has resulted in various difficulties at a later stage when owners cannot be traced by
users who want to use those works at a later stage. Orphan works are those works which
presumably still fall under copyright protection but have unidentified or inactive rights-
holders.1 The use of such orphan works becomes challenging since tracing the right-holder
and getting permission to use the work can be costly and cumbersome. Further, there are
innumerable instances where extensive searches also result in failure to trace one or all of the
right-holders. For instance, BBC ran a pilot project and estimated that clearing the BBC video
archives for online use would require at least 800 people to work three years full-time, if all
the rights-holders could be traced and were willing to grant rights. 2Carnegie Mellon
University stated that out of a particular collection that it wanted to digitize, twenty two per
cent of the works did not have identifiable copyright owners. 3The total percentage of orphan
works remains unknown since most information is anecdotal but the scale of the problem is
undoubtedly unprecedented. If a user relies on such works, he leaves himself open to a
copyright infringement suit and the whims and fancies of the relevant legal system. On the
other hand, it is also inadvisable to freeze the use of such works since that would defeat the
very purpose of copyright law which aims to strike a balance between the rights of the owner
and the public.4There are various models adopted by different countries, each based on
different philosophical and economic principles. The first part of this project analyses the
proposed legislation in the United States, the Canadian model for orphan works, the model
adopted by the Nordic countries and the arguments put forth by Google. The second part of

1
David R. Hansen, Orphan Works: Definitional Issues, BERKELEY DIGITAL LIBRARY COPYRIGHT PROJECT,
White Paper #1, 1,2 (2011).
2
Stephen Edwards, A simple change in the law could open up online access to the BBC's archives, THE
GUARDIAN, November 25, 2010, Available at http://www.theguardian.com/law/2010/nov/25/bbc-archive-
online-access-law (Last accessed March 15, 2017).
3
Steven Hetcher, Orphan Works and Google’s Global Library Project, 8(1) WAKE FOREST INTELLECTUAL
PROPERTY LAW JOURNAL, 1,6 (2007).
4
David R. Hansen, Supra note 1.
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this paper analyses the EU directiveregarding orphan works and analyses its feasibility in
light of the existing legal models.

LEADING LEGAL FRAMEWORKS

A. AMERICAN LEGISLATIVE PROPOSAL (LIMITED REMEDIES APPROACH)

The growing concern about using orphan works led the U.S. Copyright Office to analyse the
situation and publish the Orphan Works Report in 2006. While the proposed legislation based
on this Report was passed in the Senate, it was never passed by the House of Commons and
consequently, not implemented.5 The proposed model by the Report suggested that if a user
can prove that he conducted a reasonably diligent search for the copyright owner but was
unable to locate him, the remedies available to the copyright owner would be statutorily
limited if he resurfaces.6
This modified fair use model is the most laissez faire system put forth by the lawmakers since
the state incurs no expense at any stage. There is no elaborate database of orphan works or
licensing of such works from a centrally established body. The statutory limitation on
remedies ensures that while the copyright owner gets adequate compensation if he comes
forward, such claims are judges on a case to case basis based on the use. 7 This implicitly
allows for a distinction based on commercial and non-commercial use. However, even though
there are limitations on remedies, users continue facing the vagaries of law if a mutually
satisfying agreement cannot be reached between a copyright holder and the user since their
ultimate remedy is litigation. The phrase “reasonable search” also remains undefined and
could lead to ambiguity at the stage of litigation. The framers believed that this will be offset
by the reduced possibility of a copyright holder surfacing since there is a high possibility that
most such rights are either held by future generations of original authors who have no
knowledge of such rights or are so fragmented that the copyright owner is either unaware of
his share or any possible dividend is so small that it is not incentive enough to litigate. 8The
researcher believes that while this model sounds fairly simple to implement, it leaves too
much to market forces and the courts.
5
Randal C Picker, Private Digital Libraries and Orphan Works, 27 BERKELEY TECHNOLOGY LAW JOURNAL,
1265, 1272 (2012).
6
Dr. Katharina de la Durantaye, Finding a Home for Orphans: Google Book Search and Orphan Works Law in
the United States and Europe, 21 FORDHAM INTELLECTUAL PROPERTY MEDIA AND ENTERTAINMENT LAW
JOURNAL, 229, 286 (2011).
7
Id.
8
Steven Hetcher, Supra note 3 at 19.

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B. CANADIAN MODEL (SPECIFIC LICENSING)

The Canadian copyright regime relies on a central authority, the Copyright Board to
administer non-exclusive licenses for the use of published orphan works. Under S. 77 of the
Copyright Act, 1985; if a user establishes to the Board that they conducted a reasonable
search for the copyright holder and were unable to locate them, a license for use can be
granted. The terms of the license vary but are usually restricted to non-commercial use. 9 The
user might have to pay a fee to obtain this license but the regime is fairly flexible as the fees
may be waived for non-commercial or educational uses, may be postponed till the right-
owner surfaces or might be kept in escrow till the right-owner reappears.10
This system has the distinct advantage of providing legal certainty to a user who can
demonstrate that he has conducted a bona fide, diligent search. The fee is usually reasonable
and reflects the intended use of the work. Under this system, the Copyright Board merely acts
as an administrative authority and does not have the undue burden of establishing a directory
of known orphan works on a public budget. With respect to orphan works, its function is
restricted to verifying that a diligent search has been conducted and determining the terms of
the license.
However, this system is ill-equipped to deal with the modern challenge of the digital age
where the biggest challenge comes not from individual users but entities which aim to
digitize information on a large scale.11This places an unreasonably high burden of
establishing diligent search on these mass users, for instance, digital libraries like Google, for
the use of every orphan work. Therefore, while this system has its advantages, it is seldom
used since it fails to address recent concerns regarding orphan works.

9
Jeremy De Beer, Mario Bouchard, Canada's ‘Orphan Works’ Regime: Unlocatable Copyright Owners and the
Copyright Board, 10 OXFORD UNIVERSITY COMMONWEALTH LAW JOURNAL, 215, 249 (2010)
10
Bernard Lang, Orphan Works and the Google Book Search Settlement: An International Perspective, 55(1)
NEW YORK LAW SCHOOL REVIEW, 112, 129 (2010).
11
Jeremy De Beer, Mario Bouchard,Supra note 9 at 252.

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C. NORDIC SYSTEM (EXTENDED COLLECTIVE LICENSING)

The Nordic system of extensive collective licensing addresses the shortcomings faced by the
compulsory licensing model followed by Canada. It is perfectly tailored to deal with the
problems of mass-digitization which has become a major concern due to the emergence of
private players like Google and Amazon.
While there are variations between the collective licensing models adopted by different
countries, there are various common features in the Nordic model adopted by Sweden,
Denmark, Finland, Iceland and Norway. A common management authority is set up by the
state for a particular field and this authority acts as an agent for all the right holders- existing
ones and the missing ones, entering into freely negotiated contracts with the users on behalf
of all the copyright holders.12 It is authorized to grant licenses to users for specific forms of
exploitation. The user is protected from all legal claims by virtue of the license enjoyed by
him. The body includes representatives of the right owners asserting their rights so the
inactive owners invariably get a favourable contract. An unrepresented individual owner can
approach the authority and can get individual remuneration at a later stage. He can also
discontinue the use of his work subject to whether it falls within the exceptions provided for
in the specific national legislation.13
This model has the distinct advantage of protecting the rights of a missing copyright holder
whose interests are represented by a group of people in a position very similar to his. While it
is true that there still might be different approaches to whether the copyright holder is willing
to license his work, this is the closest substitute for the actual right owner. Since he has the
option to opt out at a later stage, it differs from compulsory licensing of works; providing
enough safeguards so that the option of negotiation at a later stage is not closed. However, the
remedies at this stage are restricted. This system also simplifies acquiring specific rights for
mass-users without burdening them with either the duty to diligently search for every
individual copyright owner or be held liable for infringement at a later stage. The license fees
might however be higher than under other systems. Weighing the advantages of this system,
it is evident that this comes closest to protecting the rights of all parties involved. However, it
is only possible in relatively small countries which have a strong infrastructure capable of
grouping and making effective such bodies at the local and national level.

12
Johan Axhamnand, Dr. Lucie Guibault, Solving Europeana’s mass-digitization issues through Extended
Collective Licensing?, 6 NORDIC INTELLECTUAL PROPERTY LAW REVIEW, 509, 514 (2011).
13
Gunnar Karnell, Extended Collective License Clauses and Agreements in Nordic Copyright Law, 10
COLUMBIA- VLA JOURNAL OF LAW AND THE ARTS, 73, 77 (1985).

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D. GOOGLE BOOKS APPROACH (DOCTRINE OF FAIR USE)

In 2002, Google ambitiously aimed to "organize the world's information and make it
universally accessible and useful."14Their initial proposal was to tie up with various libraries
like Harvard, Stanford, the University of Oxford, the University of Michigan and the New
York public library, digitize their entire collections and make it available online through a
Google Books Search.15 Google also provides a digital copy of books scanned from a
particular library to that library. The Authors Guild and various publishers sued it separately
for copyright infringement of the books in the Carnegie Mellon library. Google entered into a
private profit sharing settlement with the publishers, side-stepping the contentious copyright
issue altogether. The dispute with the Authors Guild proved way more contentious and the
proposed settlement was rejected twice. The initial proposed settlement provided authors with
the option of opting out by informing Google. This was criticized extensively by the creative
community for appropriating the economic rights to all the orphan works among other issues.
The settlement was amended to ensure that a portion of the proceeds generated from the use
of orphan works is spent on locating the owner and an independent fiduciary is established to
take all decisions regarding orphan works but this was eventually rejected.16
Meanwhile, the case by Authors Guild was dismissed on the grounds that even assuming
there was copyright infringement by Google, its use fell under fair use in light of its
significant public benefits.17However, this judgement poses a new set of challenges. Without
analysing whether the snippet preview system and viewing substantial portions of the books
falls within the ambit of the fair use exception to copyright, this judgement gives Google
exclusive rights to display orphan works raising anti-trust issues. The judgement not only
cements Google’s position as the leading search engine but also ensures that the revenue
generated from orphan works goes solely to Google. While the company has invested a huge
amount to digitize information, its position as the sole agent for orphan works with rights to
distribute and use digital copies skews the fair use argument due to unjust enrichment.There
is little incentive for competitors to spend millions merely to catch up with Google and the
libraries which already have digital copies of their collections have even lesser incentive to

14
Randal C. Picker, The Google Book Search Settlement: A New Orphan Works Monopoly?, 5(3) JOURNAL OF
COMPETITION LAW & ECONOMICS, 383, 383 (2009).
15
Id at 401.
16
Revised Google Books Settlement Tackles Foreign Titles, Orphans, 41(1&2) AMERICAN LIBRARIES, 25, 30
(2010).
17
The Authors Guild Inc. &Ors. v. Google Inc., Nov 13, 2013 (U.S. District Court, Southern District of New
York).

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coordinate with these new entrants. The Authors Guild plans to appeal the
decision.18However,if the use by Google does not fall under the fair use exception, a new
legislative solution is required to deal specifically with orphan works and ensure that and
unfair monopoly does not exist over such works.Further, the commercial use of such works
needs to be judicially limited to ensure that Google does not appropriate copyright.
An indirect but crucial contribution of the Google Books Search issue has been the
acceleration of legal discourse regarding orphan works in nearly all jurisdictions to ensure
that collective heritage is not privatized.19

18
Andrew Albanes, Google Wins: Court Issues Ringing Endorsement of Google Books, PUBLISHERS’ WEEKLY,
Nov 14, 2013, Available at http://www.publishersweekly.com/pw/by-topic/digital/content-and-e-
books/article/60006-google-wins-court-issues-a-ringing-endorsement-of-google-books.html (Last accessed
March 15, 2017).
19
David R. Hansen, Orphan Works: Mapping the Possible Solution Spaces, BERKELEY DIGITAL LIBRARY
COPYRIGHT PROJECT, White Paper #2 (2011).

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THE EU DIRECTIVE

The EU has been at the forefront for the introduction of a legislative solution for the growing
orphan works problem. It believes that it is imperative to disseminate the rich cultural
heritage of Europe, stored in the form of millions of orphan books, journals, photograph,
paintings and other works in the national libraries and archives. The primary aim is to ensure
that the libraries, archives and other public service institutions are legally protected for the
making orphan works available online for limited educational and cultural purposes.
In 2006, the EU issued a recommendation to member nations regarding adopting licensing
mechanisms but disappointed with the lack of responsiveness by individual countries in
implementing it voluntarily, the EU issued Directive 2012/28/EU20requiring individual
countries to suitably amend their national laws by 29th October, 2014, so as to give effect to
the substance of the Directive. The Directive was implemented to address the growing
concern regarding orphan works, primarily the digitization of archives by national libraries
fuelled further by the then sub judice Google Books case.
This model is a modification of the fair use doctrine where an exception or limitation is
introduced in national law for limited reproductive rights for orphan works but a diligent
search for the right-holder is also mandated. This proposal envisages the setting up of
competent national registries which compile a list of orphan works after a duly diligent search
which will be conducted by the public bodies listed under Article 1(1) 21. The pivotal feature
of the European model is harmonization of laws between different countries which rests
primarily on mutual recognition of the ‘orphan’ status granted to a particular work in one
country. The central registry in one country would then be authorized to grant the rights of
dissemination of these works to users who fall under Article 1(1) for limited purposes 22 across
member nations and legal remedy against such users will be restricted. Member states have
20
Directive 2012/28/EU [Hereinafter “the Directive”], Available at http://eur-lex.europa.eu/legal-
content/EN/ALL/?uri=CELEX:32012L0028 (Last accessed March17, 2017).
21
Article 1(1), Directive 2012/28/EU - This Directive concerns certain uses made of orphan works by publicly
accessible libraries, educational establishments and museums, as well as by archives, film or audio heritage
institutions and public-service broadcasting organisations, established in the Member States, in order to achieve
aims related to their public-interest missions.
22
Article 6(1), Directive 2012/28/EU - Member States shall provide for an exception or limitation to the right of
reproduction and the right of making available to the public provided for respectively in Articles 2 and 3 of
Directive 2001/29/EC to ensure that the organisations referred to in Article 1(1) are permitted to use orphan
works contained in their collections in the following ways:
a) by making the orphan work available to the public, within the meaning of Article 3 of Directive 2001/29/EC;
(b) by acts of reproduction, within the meaning of Article 2 of Directive 2001/29/EC, for the purposes of
digitisation, making available, indexing, cataloguing, preservation or restoration.

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the freedom to widen the scope of the use of orphan works. Any copyright holder who
reappears later will have the option of ending such use and getting monetary remuneration
which will be determined on a case-to-case basis.
However, unlike under the Canadian system where individual users are responsible for
searching for copyright owners, the onerous burden of performing a diligent search falls on
the cash-strapped public institutions. National libraries and other institutions are supposed to
prepare registries of which works should be categorised as orphan works and access to these
works can be allowed to public institutions across member nations. The French, who have
been the most pro-active in searching for rights holders, estimate that digitalizing all the
works in the BibliothequeNationale de Francewill take more than $1.5 billion. Even highly
developed countries like France which profess strong support for the protection of their
cultural heritage and ensuring that it does not get appropriated by private players had only
earmark $750 million for digitization in 2011.23Needless to add, the amount required by
certain nations to digitize such works and perform diligent searches exceeds or forms a
disproportionately high percentageof their GDP. This essentially means that even after the
ambitious Directive is fully incorporated in national laws, compiling databases of orphan
works would be an almost impossible task. Therefore, publicly available databases of orphan
works which form the backbone of the model proposed by the Directive are not feasible, at
least in the form now proposed.
The blanket phrase ‘diligent search’ has been used across categories of works and the
implementation of what constitutes a diligent search has been left to different nations. In a
system that principally relies on reciprocity, it would be wise to not only provide a higher
threshold for what constitutes diligent search but also opt for a more nuanced approach for
different types of works.
The Directive applies to all orphan works, published and unpublished. Unlike Canadian law
which is restricted to published works or the fair use doctrine in the US which favours
allowing the implementation of the fair use exception for published works; this Directive
aims to provide only limited remedies to the right-holder if he asserts his rights. This is
problematic since the right to publish works in the first instance is considered an inalienable
moral right enjoyed by the author under various jurisdictions.
The EU Directive is riddled with various problems since it is a truncated version of the
original draft made after various compromises. It fails to provide an effective legal
mechanism for the limited use of orphan works.
23
Dr. Katharina de la Durantaye, Supra note 6 at 254.

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CONCLUSION

The researcher believes that the EU Directive is not only impractical to implement but also
fails to achieve any realistic goals.
The Directive is very limited in the scope of use allowed to users. If the aim of the Directive
is to allow for restricted non-commercial use, relying purely on the fair use doctrine or
introducing such restricted use as a ground under the fair dealing doctrine is a more practical
option. The onerous requirement of a diligent search in this scenario is not required as it
serves no practical purpose if both the use and the users are so limited. The mutual
recognition and sharing of information between member nations can be implemented
unchanged. However, to ensure that unlike the position established by the Google Books case
in the USA where monetary benefits from all orphan works might be appropriated by a
private company, to ensure that the proceeds benefit the entire nation; it is suggested that the
limitations suggested by the Directive are implemented. This does not address the
requirement of use of such works by individual users but that is beyond the scope of the
Directive.
The Directive in its current state allows nations the flexibility to allow broader use of orphan
works. Permitting commercial use of such works might provide strong incentives to countries
to conduct diligent searches and compiling databases of orphan works might not be
burdensome since fees can be generated from licensing such works. A public private
partnership for the purpose of digitization with limited rights of use to the private party can
also be explored. A central authority or the current physical owners of such works, like
libraries, can be assigned as trustees for these works. This would broadly correspond to the
Canadian model of individual licensing, as discussed earlier, which can effectively
supplement the proposed limited use EU model. Like the Nordic system, right-holders can
then approach these institutions directly for monetary compensation. If the scope of use is
widened to transformative works, the right-holders, when they reappear, can retain their right
to sue the users for moral rights. The Nordic system of extended collective licensing will also
be compatible to supplement this system to the limited extent of licensing such orphan works
to private users who want to digitize works if the state has adequate resources to implement
the same.

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REFERENCES

ARTICLES
1. Andrew Albanes, Google Wins: Court Issues Ringing Endorsement of Google
Books, PUBLISHERS’ WEEKLY, Nov 14, 2013.
This article analyses the four step test of fair use as implemented by the Google
Books case and the reports the reactions of concerned parties- Google, libraries and
authors. The researcher has relied upon it to state the future plan of action for the
Authors Guild.

2. Bernard Lang, Orphan Works and the Google Book Search Settlement: An
International Perspective, 55(1) NEW YORK LAW SCHOOL REVIEW, 123, 129
(2010).
The author analyses various aspects of different international models of regulating the
use of orphan works. The central theme is the criticism of the model proposed under
the first Google Books settlement and a comparative analysis with different systems.
The researcher has relied upon this article for the functioning of orphan works under
the Google settlement and Canadian law.

3. David R. Hansen, Orphan Works: Definitional Issues, BERKELEY DIGITAL

LIBRARY COPYRIGHT PROJECT, White Paper #1 (2011).
The author lays the groundwork for understanding the problem of orphan works by
addressing not only what are orphan works and the extent of such woks but also the
problems faced in the use of such works.

4. David R. Hansen, Orphan Works: Mapping the Possible Solution Spaces,

BERKELEY DIGITAL LIBRARY COPYRIGHT PROJECT, White Paper #2 (2011).
This article looks at the existing solutions to the copyright problem and suggests
policy reforms which change the nature of copyright to ensure that the orphan works
problem does not exist. One of the suggestions is mandating registration of works to
retain copyright after a shirt span of time.

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5. Dr. Katharina de la Durantaye, Finding a Home for Orphans: Google Book

Search and Orphan Works Law in the United States and Europe, 21 FORDHAM
INTELLECTUAL PROPERTY MEDIA AND ENTERTAINMENT LAW JOURNAL (2011).
This author critically analyses the US legislative proposal of 2006 and the current EU
Directive, supporting the Google model. It also looks at the impact of the Google
Books case and proposes a harmonization of approaches across the Atlantic, arguing
that this case provides not only an opportunity for such harmonization but a middle
ground between both the models. It also proposes a public private partnership
between commercial players like Google and national libraries to deal with the heavy
administrative costs of the EU vision.

6. Gunnar Karnell, Extended Collective License Clauses and Agreements in Nordic

Copyright Law, 10 COLUMBIA- VLA JOURNAL OF LAW AND THE ARTS (1985).
The author relies on specific provisions of Swedish law to generalize and discuss
common features of the Nordic extended collective licensing model, analysing these
in light of the Berne Convention. Differentiation between individual country models
is also made.

7. Jeremy De Beer, Mario Bouchard, Canada's ‘Orphan Works’ Regime:

Unlocatable Copyright Owners and the Copyright Board, 10 OXFORD UNIVERSITY
COMMONWEALTH LAW JOURNAL (2010).
In this article, the authors comprehensively analyses the functioning of the orphan
works regime under S. 77 of the Canadian Copyright Act. It elaborates upon the
functioning of the Copyright Board, the licensing system, the existing remedies and
the limitations of this system.

8. Johan Axhamnand, Dr. Lucie Guibault, Solving Europeana’s mass-digitization

issues through Extended Collective Licensing?, 6 NORDIC INTELLECTUAL
PROPERTY LAW REVIEW (2011).
Europeana is EU’s pilot project of digitalising all the information in 19 national
European libraries, ranging from Ottoman manuscripts to details about the Spanish
Civil War. However, like Google, it faced the problem of mass digitization of orphan
works. The EU Directive is criticized and the extended collective licensing system is
proposed.

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9. Randal C Picker, Private Digital Libraries and Orphan Works, 27 BERKELEY

TECHNOLOGY LAW JOURNAL (2012).
The author traces the legal developments in the US regarding orphan works. starting
from the Report on such works, the proposed legislation based on this Report which
was never implemented and the change brought about in the discourse by the entrance
of Google Books.

10. Randal C. Picker, The Google Book Search Settlement: A New Orphan Works
Monopoly?, 5(3) JOURNAL OF COMPETITION LAW & ECONOMICS (2009).
In this article, the author deals with the competition and anti-trust issues which are
raised by the implementation of the original Google books settlement where a private
player gets monopoly over orphan works with respect to the dissemination of
information and its economic benefits.

11. Revised Google Books Settlement Tackles Foreign Titles, Orphans, 41(1&2)
AMERICAN LIBRARIES (2010).
This is a brief note on the changes made under revised Google settlement. It has been
relied upon to discuss the proposed fiduciary model by Google to deal with orphan
works.

12. Stephen Edwards, A simple change in the law could open up online access to the
BBC's archives,THE GUARDIAN, November 25, 2010.
Relying on the specific instance of digitizng the BBC archives, this article criticizes
the heavy administrative costs of digitizing orphan works under the UK system of
case by case rights clearance and advocates the adoption of an extended collective
licensing system.

13. Steven Hetcher, Orphan Works and Google’s Global Library Project, 8(1) WAKE
FOREST INTELLECTUAL PROPERTY LAW JOURNAL (2007).
This article analyses the functioning of the Google Books Search project and its
impact on copyright law regarding orphan works. Options for missing right owners
under the settlement are discussed and the inconsistencies within Google’s position
are highlighted.

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CASES

1. The Authors Guild Inc. &Ors. v. Google Inc., Nov 13, 2013 (U.S. District Court,
Southern District of New York).
This is the latest order by Justice Denny Chin dismissing the copyright infringement
suit against Google Books by the Authors Guild on the basis of the fair use exception.
The Hon’ble Judge presumes prima facie infringement of copyright and deals only
with the issue of fair use. The four judicial grounds for determining fair use are
applied and overall, it has been held that the Google Book Search falls under the
exception. This effectively results in the use of not only copyrighted works, but also
the monopolistic use of orphan works by Google and the judgement is now sought to
be appealed.

MISCELLANEOUS
1. Directive 2012/28/EU,Available at <http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32012L0028&from=EN> (Last accessed
March17, 2017).

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