Orphan works

By Brand Heeler

A new law covering ‘orphan works’ caught our eye

The big news this week is that the EU has just passed an ‘Orphan Works Directive’. What are ‘orphan works’ and why should you care? An ‘orphan work’ is any copyright work whose copyright owner cannot be traced. Copyright in many works lasts for 70 years after the death of the author, and can be passed on in a will like any other asset. But copyrights are intangible and unregistered (they arise automatically without any kind of formality) so there may be very little physical evidence of their existence. Obviously, if you’re the literary beneficiary of someone like JRR Tolkein, you’ll be fully aware of your situation. If nothing else, there’ll be plenty of things to remind you: blockbuster films, new editions, spin-off merchandise, royalty checks, publishing agents etc.

But what if Great Aunty Maud dies intestate and you inherit everything, including (unbeknown to you or anyone) the copyright to her only novel, long out of print? In most cases, it may never present itself as a problem because, if no one ever wants to do anything with Maud’s magnum opus, there’ll be no opportunity to assert the copyright in it. But what if there’s a Maud revival? What if someone wants to turn her book into a play? What if someone would like to feature excerpts in a forthcoming treatise on forgotten female authors?

As it’s now your copyright, they can’t, in theory, act without your permission – all these proposals amount to ‘restricted acts’ under various copyright laws. But in practice? They may take a punt and decide to go ahead without permission. They may be a bit less brazen and include a note to the effect that they have tried to clear all relevant copyrights but if they’ve overlooked anyone please do get in touch and they’ll make amends in future editions. (That’s polite and helpful, but doesn’t change the legal situation which is that they are infringing a legally enforceable right, every bit as much as if they were to park their caravan on your front lawn without your say-so.)

But however much the producer may want to go ahead, his legal team may dig their heels in and refuse to sanction the risk. And they’d have good reason for being so cautious. Remember the old adage ‘where there’s a hit, there’s a writ’? Well, consider this conundrum – if Maud suddenly becomes the next big thing, you may well wake up to the fact that someone somewhere owes you money; whereas if Maud flops second time round as well, you’re unlikely to trouble anyone. So the likelihood of the producer getting into financial and legal trouble is directly proportional to the level of success he achieves. Which means his whole project is inherently self-defeating and pointless and that, some folks would claim, is precisely why so many Mauds are languishing in metaphorical literary orphanages, denied a chance to fulfil their potential. All because there’s no way to establish their parentage.

It’s not just a question of money – there’s also the principle. You could argue that legal rights are there to be respected or we’re all losers. Many copyright owners will feel uneasy about helping themselves to someone else’s work just because they can’t work out who to ask. If I wanted to illustrate this blog entry with a copy of an orphaned photo or a quote from an orphaned short story, there’s currently no way of legitimately doing it and perhaps this blog is all the poorer for it.

And it’s not just a question of old, dusty stuff – digital works can be orphans too. Even though it may be harder to lose track of provenance on the internet, there’s still a mass of material online which can’t be legitimately used because it can’t be traced back to its author. It may be trivial, and there may be alternatives, but all those poems, songs, photos, videos, one-liners could now be gifted a new lease of life.

Under the new EU law, a work which was first published in the EU can be declared an ‘orphan’ if no copyright owner is found after a diligent search. Thereafter, the work can be digitised, lent and used by a range of public institutions without anyone risking copyright infringement claims. There will be a single, publicly accessible, online database of orphan works and, should a long-lost ‘parent’ ever reappear, there will be a system of compensation for any use made. There are estimated to be over 25 million orphan works in UK public sector archives alone. And in the 12 months to December 2011, something like 1.2 trillion gigabytes of new data was generated and saved on the internet. Even if only a small percentage of this were to be declared ‘orphaned’, that’s still a huge amount of content freed up for use.

This article contains our thoughts and opinions on an issue of general interest and is written from the perspective of Australian and/or English law. It is not legal advice and is not provided in the context of a solicitor-client relationship. It may not even be relevant to your jurisdiction. No duty of care is assumed or accepted. Please carry out appropriate research and consult with a suitably qualified legal expert before taking any action or making any decisions.