Orphan works
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Cleanup/[[WP:AWB/T|typo fixing]], typos fixed: an an → an using [[Project:AutoWikiBrowser|AWB]]
An '''orphan work''' is a [[copyright]]ed work where it is difficult or impossible to contact the [[copyright holder]]. This situation can arise for many reasons. The author could have never been publicly known because the work was published anonymously or the work may have never been traditionally published at all. The identity of the author could have been once known but the information lost over time. Even if the author is known, it may not be possible to determine who inherited the copyright and presently owns it. Nearly any work where a reasonable effort to locate the current copyright owner fails can be considered orphaned. However the designation is often used loosely and in some jurisdictions there is no legal definition at all.
[[Compulsory license]] schemes, which would exclude orphaned works from copyright protections, are rarely acceptable under international copyright treaties. Such schemes are only worthy of consideration when there are more significant concerns than orphan works, such as a risk of market failure due to very high costs in places like the satellite retransmission market.<ref>{{cite web
| last = Peters
| first = Marybeth
| authorlink =
| coauthors =
| title = The Challenge of Copyright in the Digital Age
| work = Focus on: Intellectual Property Rights
| publisher = U.S. Department of State's Bureau of International Information Programs
| date = 2006
| url = http://usinfo.state.gov/products/pubs/intelprp/challenge.htm
| format =
| doi =
| accessdate = 2006-11-27 }}</ref>
== Canada ==
[[Canada]] has created a supplemental licensing scheme that allows licenses for the use of published works to be issued by the Copyright Board of Canada on behalf of unlocatable copyright owners, after a prospective licensor has made "reasonable efforts to locate the owner of the copyright".<ref>{{cite web
| last =
| first =
| authorlink =
| coauthors =
| title = Copyright Act, R.S., c 77
| work =
| publisher = Copyright Board of Canada
| date = 2005
| url = http://www.cb-cda.gc.ca/info/act-e.html#rid-33751
| format =
| doi =
| accessdate = 2006-11-27 }}</ref>
As of September 2006 the Board had issued 189 such licenses.<ref>{{cite web
| last =
| first =
| authorlink =
| coauthors =
| title = Unlocatable Copyright Owners Licenses Issued
| work =
| publisher = Copyright Board of Canada
| date = 2006
| url = http://www.cb-cda.gc.ca/unlocatable/licences-e.html
| format =
| doi =
| accessdate = 2006-11-27 }}</ref>
== United States ==
The [[Public Domain Enhancement Act]] was introduced as [[United States House of Representatives|House]] [[Bill (proposed law)|Bill]] 2601 for the United States 108th Congress in 2003 but never passed. It was reintroduced as House Bill 2408 for the 109th Congress in 2005 but died again. The bill would have released certain orphan works into the public domain if the copyright renewal registrations were not made as required.
In January 2006, the [[United States Copyright Office]] released a report on orphan works after researching the issue. The situation in the US is a result of the omnibus revision to the Copyright Act in 1976. Specifically, the 1976 Act made obtaining and maintaining copyright protection substantially easier than the 1909 Act. Copyrighted works are now protected the moment they are fixed in a tangible medium of expression, and do not need to be registered with the Copyright Office. Also, the 1976 Act changed the basic term of copyright from a term of fixed years from publication to a term of life of the author plus 50 (now 70) years. In so doing, the requirement that a copyright owner file a renewal registration in the 28th year of the term of copyright was essentially eliminated.
These changes were important steps toward the United States’ accession to the [[Berne Convention for the Protection of Literary and Artistic Works|Berne Convention]], which prohibits formalities like registration and renewal as a condition on the enjoyment and exercise of copyright. Moreover, there was substantial evidence presented during consideration of the 1976 Act that the formalities such as renewal and notice, when combined with drastic penalties like forfeiture of copyright, served as a “trap for the unwary” and caused the loss of many valuable copyrights. These changes, however, exacerbate the orphan works issue, in that a user generally must assume that a work one wishes to use is subject to copyright protection, and often cannot confirm whether a work has fallen into the public domain by consulting the renewal registration records of the Copyright Office.
The report recommended that the focus on developing legislative text to address orphan works should not obscure the fact that the Copyright Act and the market place for copyrighted works provide several alternatives to a user who is frustrated by the orphan works situation. Indeed, assessing whether the situations described to use in the comments were true “orphan works” situations was difficult, in part because there is often more than meets the eye in a circumstance presented as an “orphan works” problem. In most cases a user may have a real choice among several alternatives that allow them to go forward with their project: making noninfringing use of the work, such as by copying only elements not covered by copyright; making fair use; seeking a substitute work for which they have permission to use; or a combination of these alternatives. Even though some orphan works situations may be addressed by existing copyright law as described above, many are not.
The Copyright office has recommended new legislation which sets out limitations on the remedies that would be available if the user proves that they have conducted a reasonably diligent search and describes a threshold of requirements of a reasonably diligent search.<ref>{{cite web
| title = Report on Orphan Works
| publisher = United States Copyright Office
| date = 2006-01
| url = http://www.copyright.gov/orphan/orphan-report.pdf
| format = PDF
| accessdate = 2006-11-27
}}</ref> Such a solution would fall short of releasing orphan works into the public domain, like the previous bill, but rather encourage prospective licensors to go ahead with an infringing project knowing in advance the maximum remedy they could be faced with.
In May 2006, U.S. Representative [[Lamar Smith]] introduced H.R.5439, a bill aimed at addressing the issue of orphan works by providing limitations of remedies in cases in which the copyright holder cannot be located.<ref>{{cite web
| title = Copyright: Orphan Works
| publisher = American Library Association
| date = 2006-08
| url = http://www.ala.org/ala/washoff/WOissues/copyrightb/orphanworks/orphanworks.htm#house22may
| format =
| accessdate = 2006-11-28
}}</ref> However this bill was withdrawn in September 2006.
Subsequently in March 2008, a hearing was made in the US house of representatives aimed at reintroducing a broadly similar bill.<ref>{{cite web
| title = House of Representatives hearing on Orphan Works 2008
| publisher = Committee on the Judiciary
| date = 2008-04
| url = http://judiciary.house.gov/oversight.aspx?ID=427
| format =
| accessdate = 2008-04-27
}}</ref>
<ref>{{cite web
| title = GovTrack.us status on the 2008 Orphan Works Bill H.R. 5889
| date = 2008-04
| url = http://www.govtrack.us/congress/bill.xpd?bill=h110-5889
| format =
| accessdate = 2008-05-02
}}</ref>
And on April 24th, the bill was officially introduced to congress. <ref>{{cite web
| title = GovTrack.us on S.2913 - A bill to provide a militation on judicial remedies in copyright infringement cases involving orphan works
| date = 2008-04
| url = http://www.govtrack.us/congress/bill.xpd?bill=s110-2913
| format =
| accessdate = 2008-04-30
}}</ref>
The full text of the Senate version of the [http://www.govtrack.us/congress/billtext.xpd?bill=s110-2913 2008 Orphan Works bill (S.2913)] is now available and [http://leahy.senate.gov/press/200804/042408e.html Senator Patrick Leahy's introduction of the bill ]has been posted on his website.<ref>{{cite web
| title = Judiciary Leaders Introduce Bipartisan, Bicameral Orphan Works Legislation
| publisher = Senator Leahy homepage
| date = 2008-04
| url = http://leahy.senate.gov/press/200804/042408e.html
| format =
| accessdate = 2008-04-27
}}</ref>
Section 3 introduces the idea of a Database of Pictorial, Graphic, and Sculptural Works and states:
{{cquote|The Copyright Office must create and undertake a certification process for the establishment of electronic databases of visual works. Certain requirements for any such registry are prescribed. The Copyright Office will post a list of all certified registries on the Internet.}}
A similar bill [http://www.govtrack.us/congress/bill.xpd?bill=h110-5889 (H.R. 5889)] is also in the House, which also calls for a database of pictorial, graphic and sculptural works.
Many groups oppose the 2008 Orphan Works Legislation, including the [[Artists Rights Society]], American Association of Independent Music, the Illustrators Partnership, the National Association of Music Publishers, the National Association of Record Industry Professionals, the Association of Independent Music Publishers and the American Federation of Radio and Television Artists (AFL-CIO).
On June 6, 2008, artist [[Frank Stella]] (with [[Artists Rights Society]] president Theodore Feder) published an Op-Ed for the ''The Art Newspaper'' decrying a proposed U.S. Orphan Works law. In it, Stella wrote,
{{cquote|The Copyright Office proposal would have a disproportionately negative, even catastrophic, impact on the ability of painters and illustrators to make a living from selling copies of their work... It is deeply troubling that government should be considering taking away their principal means of making ends meet—their copyrights.<ref name="artnews">http://theartnewspaper.com/includes/common/print.asp?id=8022 | ''The Art Newspaper'' "The proposed new law is a nightmare for artists" by Frank Stella. June 6, 2008</ref>}}
==Europe==
The [[European Commission]], the civil branch of the [[European Union]], created a report on Digital Preservation of Orphan Works and Out-of-Print Works.<ref>{{cite web
| title = Report on Digital Preservation, Orphan Works and Out-of-Print Works, Selected Implementation Issues
| publisher = European Commission
| date = 2007-04-18
| url = http://ec.europa.eu/information_society/newsroom/cf/itemlongdetail.cfm?item_id=3366
| format =
| accessdate = 2007-06-09
}}</ref>
The European Commission also brought an arbitration against the United States in the World Trade Organization for the US violation of the Berne Convention with the passing of the Fairness in Music Licensing Act, a much less expansive law than the orphan works legislation currently pending in the Congress. The United States lost the arbitration and is currently paying undisclosed reparations to the WTO. [http://www.wto.org/english/tratop_e/dispu_e/1234da.pdf]
On June 4, 2008 European representatives of libraries, archives, audiovisual archives and right-holders signed a [[Memorandum of Understanding]], a ''true'' orphan works legislation that will not harm rightsholders who are managing their copyrights. It will help cultural institutions to digitize books, films and music whose authors are unknown, making them available to the public online.<ref>{{cite web
| title = Final Report on Digital Preservation, Orphan Works and Out-of-Print Works
| publisher = European Commission
| date = 2007-06-04
| url = http://ec.europa.eu/information_society/activities/digital_libraries/doc/hleg_minutes/copyright/copysub_final.pdf
| format =
| accessdate = 2007-06-13
}}</ref>
==See also==
*[[abandonware]]
* [http://forums.cgsociety.org/showthread.php?f=2&t=629108&page=1&pp=15 Anger from the CG Community]
* [[Orphan film]]
==References==
{{reflist}}
==External links==
{{linkfarm}}
* Advertising Photographers of America, APA POSITION ON ORPHAN WORKS 2008 [http://www.apanational.com/i4a/pages/Index.cfm?pageID=3866]
* Advertising Photographers of America, APA POSITION ON ORPHAN WORKS 2006 {http://APAnational.com/files/public/APA__On_Orphan_Works.pdf]
* [http://www.ami.org ami.org] Association of Medical Illustrators' (AMI) [http://findarticles.com/p/articles/mi_m4PRN/is_2008_June_3/ai_n25474484 statement] on U.S. 2008 Orphan Works bills' (S. 2913/H.R. 5889) consequences with respect to healthcare and the advancement of science [http://findarticles.com/p/articles/mi_m4PRN/is_2008_June_3/ai_n25474484]
* [http://www.ami.org ami.org] Association of Medical Illustrators' (AMI) [http://www.ami.org/ECOMAMI//TIMSSNET/amm/amm_Artist_Right_Press_release.cfm position] on U.S. 2008 Orphan Works bills (S. 2913/H.R. 5889) [http://www.ami.org/ECOMAMI//TIMSSNET/amm/amm_Artist_Right_Press_release.cfm]
* [http://www.govtrack.us/congress/billtext.xpd?bill=s110-2913 The full text of the Senate version of the bill (S.2913)]
* [http://www.govtrack.us/congress/billtext.xpd?bill=h110-5889 The full text of the House of Representatives version of the bill (H.R.5889)]
* [http://leahy.senate.gov/press/200804/042408e.html Senator Leahy's introduction of the 2008 bill] that clearly states that a "Database of Pictorial, Graphic and Sculptural Works" would be required.
* [http://www.publicknowledge.org/issues/ow Public Knowledge (a Washington DC public interest group) perspective on the 2008 version of the Orphan Works bill]
* [http://www.youtube.com/watch?v=CqBZd0cP5Yc Corporate Theft - The Orphan Works Bill] on YouTube, including interview Brad Holland of the Illustrator's Partnership about the Orphan Works bill and how it affects every artist and photographer
* [http://www.asmp.org/news/spec2008/orphan_update.php American Society of Media Photographers (ASMP) Update on 2008 Orphan Works Legislation]
* [http://www.stockartistsalliance.org/orphan-works Stock Artists Alliance Commentary and Resources about 2008 Orphan Works legislation]
* [http://capwiz.com/gag/home/ Graphic Artists Guild Legislative Action Center] on the [http://capwiz.com/gag/issues/alert/?alertid=11299236 Orphan Works Act]
* [http://www.plagiarismtoday.com/2008/04/25/orphan-works-bills-introduced/ Plagiarism Today - Orphan Works Bill Introduced ]
* [http://www.blogherald.com/2008/04/28/what-orphan-works-could-mean-to-bloggers/ What Orphan Works Could Mean to Bloggers] with suggested on how to protect your work
* [http://www.copyright.gov/docs/regstat031308.html United States Copyright Office on The "Orphan Works" Problem and Proposed Legislation]
* [http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185 Illustrators' Partnership of America: Orphan Works Resource Page for Artists]
* [http://citesandinsights.info/v5i10d.htm Cites & Insights perspective on the 2005 bill]
* [http://www.orphanworks.net Background website on the history of the legislation]
* [http://www.apanational.com/files/public/APA__On_Orphan_Works.pdf Orphan Works: Challenges & Solutions by Jeff Sedlik]
* [[citizendium:Orphan works|Orphan works]] - a more detailed article at ''[[Citizendium]]''
* [http://www.a2im.org/newsDetail.aspx?newsID=117 American Association of Independent Music: Position Paper Opposing Orphan Works]
* [http://www.narip.com/index.php?option=com_content&task=view&id=568&Itemid=1&PHPSESSID=0be9d87f8ca95ffd52cd8ebb4789c3f0 National Association of Record Industry Professionals: Take Action: Don't Let Congress Orphan Your Work]
* [http://www.nmpa.org/washington/index.asp?id=2 National Music Publishers Association: NMPA Position Paper Opposing Orphan Works Legislation]
* [http://www.aimp.org/UserFiles/File/AIMP-CCC_Orphan_Works_Position_Paper(1).pdf Association of Independent Music Publishers Position Paper Opposing Orphan Works Legislation]
[[Category:Copyright law]]
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