Give Orphan Works a Loving Home

by · November 29, 2010

from Language Revival Likely sitting in a dusty storage room somewhere in Doha are reels of film from the Qatar’s past 50 years. In another storage room there are probably equally dusty tapes from radio broadcasts chronicling events such as Qatar’s independence, the rapid growth in the country, political changes and the unique Qatari view on world events. There are probably even more dusty creative works sitting in university libraries, government offices and museum archives. I won’t try to predict what might exist, but wouldn’t it be cool if we all had access to this creative content? The internet and modern digitization methods make this highly possible and in Qatar there is a desire to digitize and certainly the money to do this, but there is a pesky little thing standing in the way of sharing these works: copyrights!

In the case of a lot of the artifacts described above it may be clear who owns the work – the television station, the museum, the university or the radio station. But what if they didn’t actually create all the work? What if in a television spot a photograph was used that is unattributed? What happens if a manuscript is located and it has only a name, but no date? How about that radio story that uses music in the background with no mention of the composer? These works may or may not be copyrighted, and we may or may not be able to locate the copyright owner. Does this mean we should let the work remain in boxes, dusty and irrelevant, out of fear of copyright infringement? Seems like a waste to me.

Many of these works fall into a category known as “orphan works,” or works that likely have a copyright, however the copyright owner is unknown. Orphan works are a major problem as organizations around the world try to decide what to do with old content that has unclear copyrights. The BBC, for example, has tons of historic footage it would like to digitize, but because of existing copyright laws, they believe it would be nearly impossible to fund an endeavor where all rights of every piece of content would be exhaustively searched. This means that footage will likely remain in its old, non-digitized format the foreseeable future.  The United States Holocaust Memorial Museum is facing a similar problem with millions of archival documents in its possession, such as photographs, recorded oral histories and reels of film that it cannot publish or digitize because of unknown copyrights.

And while organizations are struggling with the issue of orphan works, governments are stepping in to try to find solutions, but without much progress. The U.K. has toyed with legislation and in the U.S. various bills have gone to Congress, without a clear answer emerging. There are many lobbyist organizations that don’t want any action on orphan rights, saying that allowing the use of orphan works will lead to mass exploitation of copy righted works, harming countless content creators. To me, this seems to be an extremist argument that hurts more creators than it helps. So what should we do about orphan works?

A campaign against orphan works legislation

One organization, Public Knowledge, a U.S.-based public interest group, seems to have a nice compromise solution – one that allows the use or orphan works, but at the same times recognizes that someone may hold the copyright and come forward to stake claim to their work. In its recommendations it suggested requirements for organizations to make a “good-faith” effort to identify copyright owners (not just blank labeling of works as orphans) and allows for the use of orphaned works after this search. It provides protection for the organization or individual using the orphaned work and suggests that a requirement be made to label the work as an orphan. Then suggest allowing for the reality that a copyright owner may come forward, caps the fees that they can be paid for prior usage of their work, but enforces the copyright for future, new usages. This seems like it would allow orphans to emerge from their dusty storage and experience new life in the digital world, while still allowing copyright owners to come forward.

I also think that anyone who chooses to share or use orphan works should recognize that they don’t have full ownership of these works, and be sure to not try to “lock” them down. Label them as orphans; make them available under flexible rights licenses, such as the ones offered by Creative Commons.

In the new digital world I think it is time for us to stop thinking about the old way of managing intellectual property – i.e. just copyrights, and examine new ways to bring new life to old works – and also to spur creative innovative new works. One way to make sure your new work doesn’t become an orphan is by applying Creative Commons licenses to it and defining how you would like your work to be used. And for those poor orphans, let’s find a way to give them a home – hopefully one that allows them to be used, mixed, magnified, and reborn!

Post By Brian Wesolowski (137 Posts)

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Discussion1 Comment

  1. Sterenborg says:

    I wrote a book about this topic in which I re-define the definition of an “Orphan Work” and try to put all kinds of solutions into an international framework: “what would work on an international scale?”

    Solutions can be found in the area of management, contracts, new or already existing legislation and the so-called soft law area. Interested? Preview at http://www.djrsterenborg.eu and available for €20 (excl. shipping)

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