“Orphan works” are copyrighted materials—ranging from photographs and films to books and musical compositions—whose owners are difficult or impossible to identify or locate after a reasonably diligent search. Although these works are still protected by copyright law, the inability to obtain permission for their use creates a significant challenge for creators, archivists, and the public, potentially stifling new creativity and the preservation of cultural heritage.
The Nature of the Problem
The core issue stems from modern copyright law, particularly the elimination of mandatory registration formalities and the substantial extension of copyright terms (generally the life of the author plus 70 years in the US and UK). This means works from the mid-to-late 20th century remain under copyright, but often lack clear ownership records because:
- Lack of documentation: Many older works, such as mid-century photographs, were created without formal documentation or copyright notices.
- Ownership transfers: Copyrights may have been transferred to heirs or publishers who are now out of business or difficult to trace.
- Anonymity: The original author may have been unknown or published anonymously.
For someone wanting to use an orphan work (e.g., a documentary filmmaker, a museum archivist), the choice is stark: either abandon the use of potentially valuable material or use it and risk a copyright infringement lawsuit if the owner later appears.
The Impact on Creativity and Access
The “orphan works” problem leads to a significant market failure. Millions of works are effectively locked away, preventing their productive use, digitization, and public access, which is contrary to the constitutional purpose of copyright law: “to promote the Progress of Science and useful Arts”.
Libraries, archives, and other cultural institutions face major hurdles in digitizing their collections for online access because the potential liability for infringement (which can be up to $150,000 in statutory damages per work in the US) is too great.
Potential Solutions around the Globe
Various solutions have been proposed and implemented worldwide to address this gridlock.
- United States: In the U.S., legislative attempts to address orphan works have failed to pass Congress, despite reports and recommendations from the U.S. Copyright Office in 2006 and 2015. The core recommendation has been to limit the liability for good-faith users who perform a “diligent search” for the owner before using the work.
Without specific legislation, users often rely on the fair use doctrine, which allows for certain uses of copyrighted material without permission (such as for research or education). However, fair use is a legal defense, not a clear-cut rule, which still involves risk.
- United Kingdom: The UK Intellectual Property Office (IPO) operates an orphan works licensing scheme where, after a diligent search, a user can obtain a non-exclusive license for a fee. The fees are held for eight years in case the owner comes forward.
- Canada: The Copyright Board of Canada can grant licenses for the use of published works if the copyright holder cannot be located.
- European Union: The EU Orphan Works Directive allows cultural heritage institutions to make certain uses of orphan works for non-commercial purposes after a diligent search, with a record kept in a public database maintained by the EUIPO.
The problem of orphan works remains a persistent challenge in the digital age, a byproduct of copyright systems that prioritize long-term, automatic protection over the easy traceability of ownership. While international approaches offer some pathways for use, the lack of a consistent global standard, particularly in the U.S., means millions of creative works remain in legal limbo, inaccessible to the public and unused by new creators.