Orphan work

from Wikipedia, the free encyclopedia
An orphaned work: a photo showing the resistance fighter Simone Segouin . It is not known who took the picture, and it may not have been 70 years since the photographer's death (see standard protection period ). However, this image can be used without any problems because it was created by the US government.

An orphan work is a work that is protected by copyright and whose rights holder cannot be determined even after a careful search. In a broader sense, works are considered orphaned if the rights holders are known but cannot be contacted. An example of orphan works are historical photographs that were taken during a war or research expedition but do not include the photographer's name.

Such works are problematic for potential users, as use that requires the consent of the author or the rights holder is not possible. In addition, researching the rights holder of an orphan work is often more expensive than acquiring the rights to use it. This problem is exacerbated by the digitization of printed works (e.g. Google Books ), as contracts between the author and other rights holders (i.e. publishers) do not always specify who owns the digital rights of use.

In the case of software , which also falls under copyright law, but unlike books or paintings, requires active support through updates and error corrections in order to remain usable, orphanage is a particularly serious problem: For example, the Berlin Computer Game Museum estimates that 50% of its collection was orphaned Works are.

Extent and causes of orphan works

Reliable information on the number of orphan works is scarce, although libraries, archives, and museums house very large numbers. A study published in 2009 estimated that all UK government institutions hold around 25 million orphan works in total.

According to Neil Netanel, the high number of orphan works results from two factors:

  • Copyright protection periods have been significantly extended over the course of history. The first American copyright law of 1790 protected works for only 14 years (after first publication), and for another 14 years if the creator is still alive and requests an extension. Works published between 1831 and 1909 were protected for 28 years from their first publication, with a possible renewal of protection for 14 years. In contrast, today's American (and German) standard protection period does not expire until 70 years after the author's death. With short protection periods, works would go into the public domain earlier - and the period within which unknown persons hold the rights would be shorter.
  • copyright protection is granted automatically without the author (or the owner of the usage rights) having to apply for or renew it. This would require official documentation, which in turn makes the search for the current rights holders much easier or even superfluous. In the USA today, the registration of a work is only necessary in order to take legal action against a copyright claim.

Orphan works are not only caused by insufficient documentation and archiving of usage contracts and information relevant to copyright. According to German law, a legal person can be the owner of the right of use; according to the laws of the United States, a legal person can even be the author of a work. If this legal person is dissolved, this regularly makes the search for the rights holder more difficult. After the death of a natural person, copyright generally passes to the heirs, which may require the work of an heir investigator .

The rights to orphaned works can even lie with the person who wants to use the work, however, due to the lack of documentation, someone else is suspected to be the rights holder - the search for the authors would then lead to nothing. As in the other cases, it would then be impossible to use the work.

Problem situation and development of legal matter

Even if a notice in publisher publications that one has not been able to identify the owner of the right of use in spite of all care and that one is obliged to pay the usual fee is not infrequently encountered, for example, use without the consent of the right holder in Germany fundamentally constitutes a copyright infringement . Only making publicly available and the reproduction is permitted under certain conditions according to §§ 61 ff Copyright Act (UrhG), which has been in force since January 1, 2014 . In particular, use must be preceded by a careful and unsuccessful search for the rights holder. The sources of a careful search are  legally stipulated in an annex to § 61a UrhG for the various types of work and subject matter. Not everyone is allowed to use orphan works in this way: The privilege only applies to certain public institutions such as archives, libraries and educational institutions and, with regard to their own collections, to public broadcasters ( Section 61c  UrhG).

Unlike in the USA , where - based on a discussion by the Copyright Office   - there has been a heated debate about orphan works since 2005 , the problem, although it is of considerable practical relevance, was initially hardly discussed nationally in Europe in anticipation of an EU directive. In the USA, however, a legislative solution to the problem has already failed twice in Congress: The two drafts of the Public Domain Enhancement Act would have urged every author to pay a symbolic tax for each of his works, or otherwise to forego copyright protection. The tax register required for this would have made the search for the respective author much easier.

On June 4, 2008, European representatives from museums, libraries, archives and copyright owners signed a Memorandum of Understanding on Orphaned Works. It is intended to help the archiving cultural institutes digitize orphan works of all kinds in order to make them available to the public. In 2009 the Strategic Content Alliance and the Collections Trust published a report on the importance and scope of orphan works for web services.

In October 2012 the European Union issued the Orphan Works Directive 2012/28 / EU . The directive applies to orphan works created in the EU (books, journals, magazines and newspapers), cinematography and audio-visual works, audio recordings and embedded works. Under certain conditions, the directive can also be applied to unpublished works (such as letters and manuscripts). As a result, the European Commission launched a Europe-wide register, the database of orphan works (Orphan Works Database) , by the Office of the European Union Intellectual Property  is performed (EUIPO).

The German law on the use of orphan and out-of-print works and a further amendment to the Copyright Act of October 1, 2013 sets Directive 2012/28 / EU (Orphan Works Directive) in Sections 61 to 61c  UrhG and that apply from January 1, 2014 the §§ 13d and 13e of the Copyright Administration Act applicable from April 1, 2014 . The German Patent and Trademark Office  (DPMA) has kept the register of out-of-print works that is related to the question of exploitation since 2014 .

Austria

In Austria, the EU directive was implemented with the UrhG amendment 2014 ( Federal Law Gazette I No. 11/2015 ) and has since been  regulated in Section 56e UrhG.

Canada

In Canada , there is since 1997 a statutory license in respect of orphan works. This must be requested by an authority, including extensive research to clarify rights. the resulting license fees are then administered in trust by this.

possible solutions

In most countries, the granting of copyright protection is not tied to formalities, such as, in particular, the official registration of the work. The Bern Convention of 1886 is also based on this idea . The introduction of a registration requirement, as requested by Lawrence Lessig and Zoe Lofgren , among others , would avoid the problem of orphan works.

Another solution is a legal license or compulsory licensing . Expanded collective licenses , by means of which collecting societies can also exercise rights to orphan works, are also conceivable . In countries with deliberately open exceptions in the style of the US fair use doctrine , certain uses of orphan works may be permitted. The fair use regulation of US law, which does not exist in German law, allows, for example, the use of all works for the purposes of criticism, commentary, reporting, school lessons, university education and research , with each individual use according to certain criteria must be checked. It should be noted, however, that there are no specific, practical standards for (US) fair use. Fair use is based primarily on case law , which is unusual in the German legal community .

Delimitation and allied cases

The term of orphan is to be distinguished from anonymous work , which was deliberately published without an indication of the author. In the case of anonymous works, the publisher or editor usually exercises the rights of the actual author. However, an anonymous work can also become an orphan work, for example through the bankruptcy of the publisher.

An official work that is no longer subject to protection because the authority no longer exists and it also has no legal successor is not considered an orphan work .

The specific variant of an orphan work for software and computer games is the so-called abandonware ( English for "abandoned, abandoned ( software ) ware"). The extent to which the “audiovisual work” named in Directive 2012/28 / EU (Orphan Works Directive) can also be related to software and computer games is discussed.

See also

  • The tragedy of the anti-commons threatens if, in orphan works with many rights holders, even only one can no longer be found, because the consent of all parties is required for a change or sale of the rights of use.
  • Provenance research , to the previous owners of cultural assets

literature

  • Oliver Talhoff: The use of orphaned and out-of-print works in copyright law = Volume 144 of Düsseldorfer Rechtswissenschaftliche Schriften, at the same time dissertation Heinrich Heine University Düsseldorf 2016. Nomos 2016, ISBN 978-3-8487-3426-9
  • Jan-Michael Grages: Orphaned Works. Licensing in the absence of the right holder. Mohr Siebeck, Tübingen 2013, ISBN 978-3-16-152797-5 .
  • Frederik Möller: Orphaned Works. An analysis from an international perspective. (= Series of publications of the Archives for Copyright and Media Law , Volume 272) Nomos, Baden-Baden 2013, ISBN 978-3-8487-0941-0 .
  • Gerald Spindler , Jörn Heckmann: Retro-digitization of orphaned print publications. The possible uses of “orphan works” de lege lata and ferenda. In: GRUR International 2008, pp. 271–284.
  • Anna Vuopala: Assessment of the Orphan works issue and Costs for Rights Clearance (PDF; 285 kB), European Commission, DG Information Society and Media, Unit E4 Access to Information, May 2010.

Web links

Individual evidence

  1. ↑ Henrike Maier: Games as Cultural Heritage Copyright Challenges for Preserving (Orphan) Video Games in the EU (PDF) In: JIPITEC . Humboldt University of Berlin. S. 127. 2015. Retrieved on January 18, 2016: “ The Computerspielemuseum in Berlin estimates that around 50% of their collection consists of at least partial orphans. "
  2. ^ JISC Collections Trust: An assessment of the scope of 'Orphan Works' and its impact on the delivery of services to the public. https://sca.jiscinvolve.org/wp/files/2009/06/sca_colltrust_orphan_works_v1-final.pdf
  3. ^ Neil Netanel (2008): Copyright's Paradox. ISBN 978-0-19-513762-0
  4. ↑ http://www.copyright.gov/orphan/
  5. ↑ Digital Libraries Initiative - High Level Expert Group (HLEG) | Europe - Information Society . Ec.europa.eu. Retrieved April 20, 2013.
  6. ^ Report on Digital Preservation, Orphan Works and Out-of-Print Works, Selected Implementation Issues . European Commission. April 18, 2007. Retrieved June 9, 2007.
  7. ↑ In from the Cold: An assessment of the scope of 'Orphan Works' and its impact on the delivery of services to the public . JISC Collections Trust, April 2009, p. 9. Archived from the original on November 18, 2009 (Retrieved May 21, 2019).
  8. ↑ a b Orphan Works . In: ec.europa.eu> The EU internal market> Copyrights and related rights . European Commission. Retrieved April 20, 2013.
  9. ↑ Memo - Orphan works - FAQ . In: europa.eu . European Commission. Retrieved May 27, 2014.
  10. ↑ Orphan Works Database. euipo.europa.eu (accessed October 18, 2016).
  11. ↑ Law on the use of orphan and out-of-print works and a further amendment to the Copyright Act, text, changes, reasons and process flow
  12. ↑ Copyright law amendment 2014 published in BGBl. Christian Handig, Austrian Association for Commercial Legal Protection and Copyright, oev.or.at, January 20, 2015.
  13. ^ Copyright Act (RSC 1985, c. C-42), p. 77.
  14. ↑ 17. Title of the US Code , § 107. See https://www.law.cornell.edu/uscode/text/17/107
  15. ↑ Henrike Maier: Games as Cultural Heritage Copyright Challenges for Preserving (Orphan) Video Games in the EU (PDF) In: JIPITEC . Humboldt University of Berlin. S. 127. 2015. Retrieved on January 18, 2016: “ The Computerspielemuseum in Berlin estimates that around 50% of their collection consists of at least partial orphans. "
  16. ↑ Henrike Maier: Games as Cultural Heritage Copyright Challenges for Preserving (Orphan) Video Games in the EU (PDF) In: JIPITEC . Humboldt University of Berlin. S. 120. 2015. Retrieved January 18, 2016.