An orphan work is a copyrighted work where it is difficult or impossible to contact the copyright holder.(1)But, now is the second question: what aspects do I want to highlight? Do I want to compare judicial systems (if any)? Or do I want to present the current status-quo of the legislative procedure in the EU? What is wished for, what are the principles for going into debate about the solution?
Here some preliminairy preview, based on online research of three hours.
Canada
Section 77 subsection (1) of the Copyright act (2):
Owners Who Cannot be Located
77. (1) Where, on application to the Board by a person who wishes to obtain a licence to use
(a) a published work,
(b) a fixation of a performer's performance,
(c) a published sound recording, or
(d) a fixation of a communication signal
Meaning that the Copyright Board may give a license to allow the use of the orphaned work. But only if the board is satisfied with the efforts made by the applicant. They also point out that some applicants can simply use works, since it falls under the concept of fair use in American law or exception of quotation under the more EU related laws:in which copyright subsists, the Board is satisfied that the applicant has made reasonable efforts to locate the owner of the copyright and that the owner cannot be located, the Board may issue to the applicant a licence to do an act mentioned in section 3, 15, 18 or 21, as the case may be.
This two-sentence description of a highway is not a substantial part of the 136-page long book in which it is found. Using those two sentences does not expropriate the essence or flavour of the work. Consequently, no licence is required and the application is dismissed.(3)
America
There will be/ is legislation in America, based on the Shawn Bentley Orphan Works Act, S. 2913.
Main thing - and this is based on some YouTube-videos (4)- all works will have to be registered
to profit from the protection by law. Many Users have noted that this is will lead to the use of UGC by corporations. A nice follow-up let's say to the Web 2.0 applications. Remember the Virgin Mobile issue on flickr.com : "hey that's me! no joke. i think i'm being insulted...can you tell me where this was taken. " Maybe we will see more of this kind of usage when corporations "crowd source" the internet for creative works...When you did not register, well then you will not have any commercial intentions with your work, but we do!!!!
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(1) http://en.wikipedia.org/wiki/Orphan_works
(2) http://www.cb-cda.gc.ca/info/act-e.html#rid-33751
(3) Copyright Board Canada, 2007-UO/TI-22 at http://www.cb-cda.gc.ca/unlocatable/other/7-b.pdf
(4) therealweeklynews, CORPORATE THEFT - THE ORPHAN WORKS BILL, at http://www.youtube.com/watch?v=CqBZd0cP5Yc
(5) Cartoon, used with fair use exception of visual quotation from: http://anti-orphan-works-act.com
(6) Photo: (c) 2008, some rights reserved, by Michael Mistretta at Flickr.com
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