Causes of Orphan Work Emergence

In order to use works of the authors who are not well known, and using the work of the
authors who are well known will require the consent of the rights holder. However, it is
important to note that due to the data missing about an author and a rights holder, it is not
possible to obtain permission from them. 1 Identification or locating a rights holder, when an
exclusive copyright still exists and the copyright protection has still not expired, is difficult.
There is also a high chance of being sued when the copyright protection has not expired. It is
likely that the rights holder will file the law suit and this will lead to the fact that the authors
avoid to use the works of the works of the authors that are unknown. 2 Such actions violate the
copyright laws, even if such probability is insignificant.

Scholars across various fields have defined orphan works as works in which the copyright
holders are not identified, and there is no information about the rights holder location despite
there being diligent searches, reasonable and sufficient measures to identify the copyright
holders of the work.3 A majority of the orphan works are reported to be a significant part of
the archives not only in the libraries, but also in various other arenas such as film funds, and
museums. In the British Library it was found that over 40% of the works had funded the
copyrighted works. Approximately 150 million authors were unknown, and it was observed
that most of the works did not have any commercial value but the works had value of
education and culture.4

There are several factors that contribute to the rise of the orphan works, these include:

Firstly, the data about the author of the work which was lost, if the works is existing in a
single copy and the data is lost due to the cause of negligence of the cultural institute by way
of inappropriate or faulty storage.5 The original work is lost, even though there is a copy of
the work is used there is no citation of the specified author. This usually happens when the
work is copied on the internet. Secondly, another cause of orphan emergence is when there is
a negligence of authors to their own copyrights and the object of their creativity. 6 Thirdly,
1
David Hansen, Orphan Works: Causes of the Problem (2012).
2
Proliferation of the problem of orphan works across the world - Ahmed - 2019 - The Journal of World
Intellectual Property - Wiley Online Library, https://onlinelibrary.wiley.com/doi/abs/10.1111/jwip.12135 (last
visited Oct 17, 2023).
3
Bzhar Abdullah Ahmed, The Situation of Orphan Works under Different Jurisdictions, 20.
4
Digitisation of British Newspapers 1800-1900 | Ed King, https://www.gale.com/intl/essays/ed-king-
digitisation-of-british-newspapers-1800-1900 (last visited Oct 17, 2023).
5
Nirajan Man Singh, Factors Contributing to Orphan Works Vis-À-Vis a Viable Solution, (2011),
https://papers.ssrn.com/abstract=1916810 (last visited Oct 17, 2023).
6
Id.
many a large number of authors who co-author works do not know each other, and this is
contributed to using the internet- with websites such as Wikipedia and open-source
software’s. Under these conditions it is difficult to know what is the name of the authors, and
to establish a clear criterion for the authorship for the co-authors.7

The problem of orphan works and the prevention of its occurrence in the future is supposed to
be solved by providing a mandatory registration of the copyright works, however in copyright
laws of countries there are provisions to provide protection of the works without any
formalities.

Possible Solutions to Orphan Works Problems

Before understanding the possible solutions to the orphan works it is imperative that we delve
into the failure of private ordering in the orphan works. Firstly, when understanding the
nature of the work- a third party exploitation of the exclusive rights under the copyright will
require the copyright owner’s authorization unless there is copyright limitation or an
exception such as fair use that applies. The exploiters who are about to exploit will not
qualify for a limitation or an exception but those who are unable to locate the copyright
owner must also decide whether to renounce their projects or possibly face the risk of the
copyright owner appearing once the exploitation is underway and they demand that there
should be a relief in terms of both injunctive and monetary relief whilst ensuing an
infringement action. There are frustrated users such as the commercial entities, who seek to
reissue the “out-of-print” works or create new works that are based on the orphan works to
the cultural institutions such as the museums or libraries which have the main aim digitizing
works for preservation and educational purposes to those individuals who seek to incorporate
an “orphan” work in their webpage or blog.8 It is important to note that the intensity of the
problem varies with the nature of the work, and in some cases the chains of the title may be
more reliable and prevalent in some sectors. Furthermore, it is likely that the number of
unlocatable owners of the currently unexploited works will increase along with the expanded
length of the copyright term- this holds especially true if the rightsholders do not keep the
copyright management information up to date.

7
Margaret Wood, Orphan Works and Fair Use in a Digital Age | In Custodia Legis, THE LIBRARY OF CONGRESS
(2012), //blogs.loc.gov/law/2012/02/orphan-works-and-fair-use-in-a-digital-age (last visited Oct 17, 2023).
8
Keith Porcaro, Private Ordering and Orphan Works: Our Least Worst Hope? Copyrights & Trademarks, 9
DUKE L. & TECH. REV. [1] (2010), https://heinonline.org/HOL/P?h=hein.journals/dltr9&i=257 (last visited Oct
17, 2023).
When solving the problem of Orphan works there are certain alternatives that can be
considered. Firstly, there can be rights management information – this is because orphan
works is an information problem and the difficulty in locating rights owners are caused by a
lack of metadata. Not every piece of work displays information about its authorship or
copyright ownership, the copyright ownership details on a work can become obsolete when
ownership changes occur and there's a pervasive absence of comprehensive copyright
registries or other publicly accessible documentation. Hence, any progressive approach to
addressing the orphan works issue should incorporate methods that promote the provision of
rights management information (metadata) to the public. If sufficient metadata becomes
accessible to the public, it could reduce the expenses associated with identifying rights
holders and thereby streamline the process of rights clearance.9

Implementing a legal requirement for authors or rights holders to disclose copyright

ownership information would be in conflict with international copyright standards,
particularly the Berne Convention for the protection of literary and artistic works. This would
be the case if it made the existence or exercise of copyright dependent on formal
prerequisites. Under the Berne Convention, apart from specific situations within a single
nation, it is forbidden to establish compulsory registration systems or mandate a copyright
notice that includes details about the copyright owner's identity, location, and copyright date
on each copy of the work. However, it is permissible to put in place measures that encourage
rights owners to willingly provide information about copyright ownership and licensing
terms.

Secondly, extended collective licensing should be implemented. Promote the coordinated

administration of copyright for works that are well-suited for digital reuse. The benefit of this
approach is that, due to the centralization of rights holders within a collecting organization,
potential users would encounter fewer challenges when searching for the copyright owner of
the work they wish to utilize. When a collecting society is established and it represents a
substantial portion of rights holders in a specific domain, there is a good chance that the
society will also represent the specific copyright owner that the user is seeking.10

9
Kelu L. Sullivan, Orphan Works at the Dawn of Digitization, 18 RICH. J.L. & TECH. 1 (2011),
https://heinonline.org/HOL/P?h=hein.journals/jolt18&i=249 (last visited Oct 17, 2023).
10
Yafit Lev-Aretz, Copyright Lawmaking and Public Choice: From Legislative Battles to Private Ordering, 27
HARV. J. L. & TECH. 203 (2013), https://heinonline.org/HOL/P?h=hein.journals/hjlt27&i=209 (last visited Oct
17, 2023).
Thirdly, implement a compulsory license to use orphan work,11 A more robust method to
establish legal clarity would involve enabling a user to request a license from an
administrative entity for the utilization of a specific work when the identity or location of the
rights holder cannot be determined through reasonable investigation. A model for such a
system can be found in Canada12 (as outlined in Article 77 of the Canadian Copyright Act). In
this Canadian framework, the Canadian Copyright Board must be convinced that the
applicant has made 'reasonable efforts' to locate the copyright owner before granting a
license. Generally, a user can seek a license for multiple orphans works through a single
application. While it's not mandatory to have exhausted 'every effort' to trace the rights
holder, the applicant needs to demonstrate that they've conducted a 'thorough search.' To meet
this requirement, the Copyright Board advises applicants to get in touch with various
collecting societies and publishing companies, consult indexes at national libraries,
universities, and museums, inspect copyright office registration systems, explore inheritance
records, and perform internet searches.

Changing Information Creation and Storage Practices

The removal of formal requirements and the extension of copyright durations result in more
works being automatically protected for longer periods, primarily for the benefit of
individuals who may not necessarily wish to own or oversee those rights. In the case of
orphan works, this situation is exacerbated by the fact that advances in new technologies
enable the creation, fixation, and preservation of a greater volume of copyrighted works than
ever before. Over the past two decades, electronic publishing has led to a significant increase
in new content. Even in the traditional realm of book publishing, there has been a remarkable
surge in the number of new titles and editions available, with a considerable portion of this
growth attributed to the publication of e-books. Efforts to assess the overall influence of
digital technology on society's collective information output yield similar results. 13 Enhanced
storage allows the creators to manage their works and track their copyright status
information.

Conclusion
Attempts to solve the problem of using orphan works are carried out in different legal
systems, however there is no single solution of legalizing the orphan works. The legal
11
Wood, supra note 7.
12
Art 77, Canadian Copyright Act.
13
Michael B. Abramowicz, Orphan Business Models: Toward a New Form of Intellectual Property, in
PERSPECTIVES ON FINANCING INNOVATION (2014).
regulation of the orphan works should be carried out with experience. The discussions
concerning the creation of a framework to safeguard orphaned works are said to be taking
place at the interstate level. This approach is favoured because addressing this issue solely at
a national or regional level would not effectively tackle the challenges posed by cross-border
digital content relationships. Additionally, such a narrow approach would disrupt the
conventional system of exclusive copyright protection. Given the significance of orphaned
works and their substantial societal value, it is imperative to address this issue on a global
scale.

The Canadian system of compulsory licensing can be seen as inspiration when looking
towards to solving the orphan problem as it provides maximum legal certainty. It is hoped
that national legislatures introduce legislative solutions as the problem of orphan work is
becoming more acute and is threatening to undermine the increase in the digitization projects.