Ukrainian legislation has recently undergone changes – on January 1, 2023, a new version of the law on copyright and related rights came into force, which introduced a new concept of “Orphan Works”. Ukrainian legislation is periodically improved, and this time there have been dramatic changes, almost 80% of the law on copyright and related rights was amended for the purpose of European integration.
The origins of the term “orphan works”
An orphan work in the general sense is a work where the author of such a work is unknown or cannot be found. In Canada, the legal regulation of orphan works dates back to the 1988s, and in the United States, the term was first used in the 1990s. Back then, the issue of access to works whose authors cannot be identified or found was raised.
The contribution of the United Kingdom, which has numerous legal archives and global authority in the field of intellectual property for more than 300 years, should be noted. The UK introduced the practice of licensing orphan works in 2012. The new license scheme was designed to facilitate public access to orphan works and to protect the rights holders of these works in case they emerge and to provide authors with appropriate remuneration if they do.
An orphan work and its features
An orphan work is a work whose author is unknown or whose location is unknown. According to the law, this status of “work” can only be obtained when, for example, a work is published in books, newspapers, written publications, magazines, or in organizations that store audio and video recordings.
The use of an orphan work is permitted under Article 29 of the Law on Copyright and Related Rights: “Libraries, museums with open access to visitors, archives or organizations for preservation of audio and video recordings by means of reproduction methods for the purpose of digitization, indexing, cataloging, preservation or restoration of a copy after taking measures to identify and properly search for authors, other copyright holders, which did not lead to the identification of the relevant copyright holders or the recovery of identified subjects.”
Proper search for authors
Proper search for authors is a rather important and interesting topic in relation to orphan works. Before granting orphan status to a work, according to Article 1(1) of the EU Directive, in order to establish whether a work or phonogram is indeed an orphan work, a mandatory “proper search” for the owners of such works must be carried out. This is the main condition before obtaining the proper status or using this work.
The issue of searching for authors is quite complicated because the procedure itself is quite expensive. The search takes place in a state that is a member of the EU, and if there is information to find the right holder located in another country, then you need to turn to the sources that are available in that country. After a thorough search, the organizations that conducted the search must provide such data:
– The result of a thorough search;
– On the use of Orphan Works in accordance with the provisions of the EU Directive;
– Any changes regarding works and phonograms recognized as orphan works;
– Contact information of the interested organization;
The difference between public domain and orphan works
The question arises whether an orphan work can be perceived as public domain, or whether such an approach can be applied at all. The answer is unequivocally no. The difference between these two concepts is great.
For example, a single copy of a work may suffer damage to the title page with information about the author due to improper storage or if the work was illegally copied without indicating the author’s identifying characteristics. That is why there is a need to understand how to regulate the status of such a work and provide protection.
Under such circumstances, along with anonymous works and works published under a non-literary pseudonym (whose author cannot be identified because he or she was not originally named), a special category of works appears, which were originally referred to as “works with unidentified authorship” and are now referred to as “orphan works.”
The public domain includes tangible and intangible objects and benefits that can be freely used by any member of society. It also includes works as the results of intellectual activity and all unprotected intellectual property that has expired. The list of such objects is constantly updated and includes a large number of works.
An orphan work, unlike a public domain work, is a copyrighted work for which the copyright holders are positively indefinite or non-contact.
In other words, an orphan work is when none of the subjects of property rights has been identified as a result of a thorough search, and if such a subject is identified (including objects published anonymously or under a pseudonym), their location has not been established.
Acknowledging the difficulties of circulation of orphan works, the Ukrainian Wikipedia unexpectedly points out that due to the past unregulated legal regime of orphan works and the impossibility of their use, “the public domain is severely limited, since due to the lack of registered data on property rights owners, a significant part of works that could belong to this domain have an uncertain legal status.” Obviously, the concepts of copyright “orphan work” and “work that has passed into the public domain” are being confused, at least at the level of the resource, which declares its goal to educate the general public and, at the same time, potential users of orphan works.
Leading WIPO experts (1980) defined the concept of “public domain” as “…the sphere of all works that can be used by any person without anyone’s permission as a result of the expiration of the term of protection or the absence of an international instrument providing protection in the case of foreign works”.
Therefore, the concepts of “orphan work” and “work that has passed into the public domain” should be clearly distinguished based on the following positions…:
– The concept of “work that has passed into the public domain” makes it possible to identify and designate the author, determine the term of protection of exclusive rights, and also means that this term, established by law, has already expired. In contrast, the term “orphan work” is used when an attempt to identify the author and/or his or her successors has failed (lack of information), but the term of legal protection is likely to still be in effect and the law requires obtaining permission from the holder of exclusive rights to legally use such a work, which is technically impossible;
– The concept of “work in the public domain” is a well-established legal category, actively used in national and international legal acts.
