Orphan works

Canada's federal departments of Heritage and Industry are pursuing a consultation on copyright. Most of the discussion is about digital media, but there's a thorn in the paw of this old bear - orphan works.

Below is a comment drafted to submit to the consultation. Comments before I do so welcome.

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When copyright was initially introduced in the UK in 1710 the term was 14 years. The term has been gradually increased which has led to a corpus of works for which it is difficult or impossible to contact the copyright holder; so-called orphan works. Estimates are that these account for a large fraction, possibly even a majority of all publications.

It's often books from smaller publishers and individually published works, including family histories, that become orphans. Often when the copyright holder of one of these works is finally tracked down they are only too happy to allow the use of, say, an image or extended extract from that work at no cost.

As written the law fails to balance rights and obligations of all affected parties by placing an unreasonable burden on those wishing to make use of orphan works and build upon the product of the creator's endeavour.

In 2007 a Joint Steering Group established by the International Federation of Library Associations and Institutions IFLA) and the International Publishers Association (IPA) agreed on five principles to be followed by users of orphaned works:

• A reasonably diligent search should be undertaken to find the copyright owner.
• The user of an orphan work must provide a clear and adequate attribution to the copyright owner.
• If the copyright owner reappears, the owner should be reasonably remunerated or appropriate restitution should be made.
• If injunctive relief is available against the use of a previously orphaned work, the injunctive relief should take into account the creative efforts and investment made in good faith by the user of the work.
• The use of orphan works in non-exclusive.

To facilitate this agreement in Canada the copyright law should establish a registry whereby a creator or their agent could assert and renew their right every, say, ten years, and provide speedy access for those wishing to obtain copyright clearance. Where a work's creator does not maintain effective control of the work through the registry or some other recognized means which facilitates obtaining clearance then the copyright holder should be deemed to have abandoned their rights.