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COPYRIGHT LAW ON ORPHAN & ANONYMOUS WORKS

Author: Natesh Kumar

ABSTRACT

This article would explore the stance of copyright laws in cases of orphan and anonymous works i.e. cases wherein the owner is anonymous or cannot be contacted. The issues associated with orphan works are also addressed to which the corresponding solutions and recommendations are discussed. The latter part of the paper would analyse the manner of protecting anonymous or pseudonymous works. 

 

ORPHAN WORKS

“Orphan works” are works that are sheltered by copyright, but the author cannot be traced or located. The US Library of Congress defines ‘Orphan works’ as “copyrighted works whose owners are difficult or even impossible to locate.” Copyrighted works can become “orphaned” when the owner is unidentified. This could occur due to numerous reasons. For instance, the author could have never been publically known; the work was published anonymously, or never published at all. Otherwise, the identity of the author could have been once known but the evidence was lost over time. For instance, at times it may not be possible to detect who inherited the copyright and presently owns it. A copyrighted work can also become “orphaned” when the owner cannot be found. Examples of such orphaned works could be old photos or documents, which have been stored in library collections for years or perhaps recently discovered. Another type of orphan works exists where the works are inherently informal, collaborative, or amorphous. Such works are particularly common today in the digital world. Blogs, web-pages and wikis are informally created, often by the collaborate efforts of dozens of users which are impossible to locate. 

 

PROBLEM OF RELUCTANCE

Orphan works pose a genuine problem for users who desire to use such work, for both commercial and non-commercial purposes.  For example, a filmmaker who wants to include a piece of music protected by copyright in a documentary will be unable to do so if the owner of the copyright in the music is either unknown or cannot be identified. That is, you cannot seek license for the use of a copyright when you do not know whom to seek permission from. Proceeding without licence would infringe the copyright, unless your use of the work is covered by an existing exception to copyright.

Prospective users are often hesitant to use orphan works as they would incur huge sums of money to trace the owner. In addition, the process of copyright search for an orphan work is cumbersome, time consuming and the odds of futility loom large. These factors dissuade potential users from using orphan works. Even with success in the exhausting search, the user would have to bear huge damages or an injunction as a part of the infringement liability. These damages range from US$ 750 to US$ 150,000 per infringement. 

Therefore, when prospective users are faced with the dilemma of whether to use an orphan work, they would more often than not decide against using the work. 

 

A CONSEQUENCE OF A LOSE-LOSE SITUATION 

Consider for instance, the problems a historian desiring to study a collection of old photos or maps could run into. As the researcher most likely lacks the financial, legal, and human resources to withstand the potentially devastating costs of a lawsuit, she will refrain from using the works altogether. A library wishing to engage in digital preservation faces a similar problem. For instance, the British Library holds thousands of photographs of British servicemen during the First and Second World Wars. However, despite the obvious value these photos have to researchers, since their owners cannot be traced, the photographs cannot be digitized and made accessible. 

In short, the property is neither enjoyed by the owner nor the user, thus creating a “lose-lose” situation. The potential user misses the opportunity to create and profit from a new work, the copyright owner loses the chance to obtain a licensing fee, and the public is deprived of the benefits of the new and future works created by the new user.

 

SOLUTIONS AND RECOMMENDATIONS 

Unlocking the potential of these orphan works has been a key issue for the copyright regime. In light of this problem, and principally given its propensity to grow in the coming years, let us take a deeper look at the probable solutions to the problem. 

Diligent Search: A key solution to the issues that lead to copyright infringement of orphan works is by requiring the prospective user to perform a diligent search for the owner.

Licensing Scheme: A licensing scheme involves receiving approval to use an orphaned work, from a government body, after a diligent search for the owner was completed. Few countries have adopted such licensing mechanisms. The most prominent example of a licensing regime is in Canada. According to section 77 of the Copyright Act of Canada, if a copyright owner is not located after a reasonable search, a user may apply to the Copyright Board of Canada (“the Board”) for a license to use the work. The Board will determine the license fee or royalties, the duration of the license, and how the orphan work can be utilized. The licenses fees are assigned to a designated copyright collective society. The copyright holder then has five years after the expiration of the license to claim the royalties. If the copyright holder does not retrieve the license fee, the collective society can keep the royalties. Currently, 242 Licenses have been granted for the use of works of “unlocatable copyright owners”. 

A notable aspect of the Canadian licensing scheme is the cooperation with the Canadian Copyright Licensing Agency (“CCLA”), a non-profit, independent organization which comprises of both copyright holders and orphan works users. The CCLA reviews the steps a prospective user has taken and recommends to the Board whether the search was reasonable and whether a license should be granted.

A licensing system for orphaned works was also recently adopted in Hungary. The Hungarian mechanism is similar to the Canadian one, allowing the Hungarian Patent Office to grant users with licenses to use orphaned works, if the user shows show that she has taken every measure reasonable to find the right holder and that the search has proven unsuccessful. A noteworthy aspect of the Hungarian legislation is the preferential treatment for not-for-profit uses: the fees do not have to be deposited and a preferential rate of the administrative fees applies. These preferences are not linked to the type of the institution applying for a license but only depend on whether or not the intended use is for-profit.

In the UK, the Digital Economy Bill included a clause on orphan works licensing. However, the bill recently (April 2010) was passed into law, and the relevant clause was dropped from the Bill during the Committee stage debate.

Open access licensing: These are unilateral copyright licenses where the copyright owner declares his intention to allow free usage of his copyrighted work subject to certain conditions. Normally this would include an allowance for royalty-free reproduction for non-commercial purposes. The licenses also include provisions specifying whether commercial use is allowed, whether derivative use is allowed, and whether the license is ‘viral’. Open access licensing may be considered as a benevolent method of releasing a copyrighted work to the public in a limited sense. When open access licensing model applies, there is (usually) no need to explicitly seek permission from a copyright owner, and hence the problems associated with orphanhood may be side-stepped. This solution, however, is typically applicable for newly created works; however, it does not resolve the problem concerning formerly existing orphaned works.

Vesting copyrights to a government guardian: Another solution to be considered relates to abandoned property.  In Israel for instance, if the owner of a property is unidentified or cannot be traced, the court could handover the management rights in the work to the appointed “government guardian”, who could (inter alia) permit the use of the work.

Database and Registries: Maintenance of information using digital libraries, database and registries can facilitate the creation and accessibility of orphan works. For instance, the ARROW project (Accessible Registries of Rights Information and Orphan Works towards European) is meant to assist orphan works users in finding ways to identify right holders and clarify the rights status of a work. 

MILE (Metadata Image Library Exploitation) acts as a fountain for all orphan works and invites visitors to offer data about those works. Another interesting item is the Google Book Rights Registry which is to be created under the settlement agreement in the Google Book Search litigation. In addition to acting as a voluntary registry, the Book Rights Registry will have the ability to represent authors and publishers with third-party companies as well as Google, thus potentially serving as a collective rights organization. 

These projects have great prospective in preventing works from falling into orphanhood, and finding “lost” owners. Nevertheless, there is a peril that a registry would enforce a de facto formality on copyright holders, thus flouting the Bern Convention no-formalities rule.

 

IMPLEMENTING AN ORPHAN WORKS PROVISION IN THE UK

The UK did not have an orphan works scheme, until 2014. There were attempts to address the problem regarding orphan works in 2006 and 2010, but the attempts were unsuccessful. Nevertheless, in October 2014, two reforms were made to UK copyright law following recommendations for a copyright reform in 2011. At present, a fresh licensing scheme facilitates users to apply for a license to use orphan works for both commercial purposes and non-commercial purposes within the UK, and an exception allows certain uses of orphan works by UK cultural heritage organizations.

 

ANONYMOUS OR PSEUDONYMOUS WORKS 

Pseudonymous works refer to those works wherein the owner or the creator uses an alias or a pen name other than that of their real name, in association with their work. Famous writers, Premchand, Saki, who left a deep impression on our minds, forgot to remind us that these were not their real names. The motive for the usage of an alias is not clear, but it could emerge from a desire to create a separate identity from one’s real-life persona.

MANNER OF PROTECTING COPYRIGHT IN ANONYMOUS WORKS 

In the case of pseudonymous or anonymous works, the default owner of the copyright in the work is the publisher of the work, as provided under Section 54(b) of the Copyright rules, 1958. This default position persists until the identity of the author is disclosed publicly by the author and the publisher, or is otherwise to the satisfaction of the Copyright Board by that author or the author’s legal representatives.

The law does not explain what it means to “disclose the identity of the author to the authorities’ satisfaction”.  

However, it would be reasonable to presume that a suitable declaration which is to be submitted to the authorities during the application for registration of copyright would sort the issue

The format for the application for registration of copyright is contained in Form XIV accompanying the Copyright Rules, 1958, and includes a detailed Statement of Particulars where certain declarations must be made. The Statement of Particulars has separate columns for the names of the author, copyright owner, and publisher. 

A proper declaration would mean that in the case of pseudonymous works, the name of the author must be the pseudonym that is used in connection with the work, and the name of the copyright owner should be the real name of the author of the work.

In cases where there is no declaration about the real author, copyright protection will be granted only to the publisher of the work, in accordance with the presumption contained in section 54(b) of the Copyright Rules. 

The legislative intent of rule 54(b) was pointed in the Madras High Court Judgment in Brooke Bond India Limited vs Balaji Tea (India) Pvt. Ltd. The court meritoriously held that the legislative intent of rule 54(b) was to protect orphan works. If the presumption of the publisher being the copyright owner of an anonymous or pseudonymous work did not exist, then no civil remedy for copyright infringement would be obtainable by the publisher at all. 

In contrast, a lower court in the same matter where a corporate body claimed copyright ownership over a work, the court laid focus on obtaining a clarification as to how the corporate body acquired ownership and the authorship of the work. In the 1993 decision, the High Court said, instead, that there was no positive obligation on the publisher to disclose the real name of the author of the work, and if no real name was available, then, by default, the publisher would be presumed to be the copyright owner.

 

IMPLICATION ON THE TERM OF COPYRIGHT 

Declaring the real name of the author in anonymous or pseudonymous works also has implications on the term of copyright that is granted. Under Section 23 of the Copyright Act, 1957, when a work is published anonymously or pseudonymously, and the real name of the author remains undisclosed, copyright subsists for a period of 60 years from the year after the work is published. 

However, if the author’s real name is disclosed within this period, copyright subsists for 60 years from the year after the author dies. The provision includes an Explanation which states that the identity of an author is deemed to have been disclosed, if it is either disclosed publicly by both the author and the publisher or is otherwise established to the satisfaction of the Appellate Board by the author.

OTHER REFERENCES 

  1. https://www.wipo.int/edocs/mdocs/sme/en/wipo_smes_ge_10/wipo_smes_ge_10_ref_theme11_02.pdf 
  2. https://www.mondaq.com/india/copyright/827704/protecting-pseudonymous-works
  3. https://www.copyrightuser.org/understand/exceptions/orphan-works/
  4. https://webarchive.nationalarchives.gov.uk/20140603102448/http://www.ipo.gov.uk/ipreview-finalreport.pdf
  5. https://www.copyright.gov/orphan/orphan-report.pdf

 

 

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