These sensible arrangements were developed through international copyright treaties and conventions signed over the past 100 years or so, whereby governments of most of the world's nation states agreed to enact them into their respective national copyright legislations – including the legal right of artists of all other signatory states to enforce their copyrights in those foreign countries. The Berne Convention for the Protection of Literary and Artistic Works (Berne), signed in 1886 by the then leading industrial countries, was one of the first to aim for international consistency of approach, and reciprocal enforcement. Berne has now been signed and implemented by all but a handful of countries throughout the world. But the US now appears to be putting at risk international consistency of approach and reciprocal enforcement. Orphan works legislation is currently being considered by the US Congress, which could substantially damage the copyrights of both US and non-US artists whose works were to be copied and merchandised in the US – if this Orphan Works Act/Bill were to become federal law.

The usual arrangements for dealing with orphaned works under Berne are straightforward: if a copyright work is anonymous or pseudonymous, or the author cannot be found by reasonable enquiry, it is reasonable to assume that the author died more than 70 years earlier, and so any copying of the work is permitted by law. (Copyright normally lasts for the author's lifetime plus 70 years after the years of the author's death.) In other words, the responsibility is placed on any prospective user of a copyright work to prove that they have undertaken duly diligent enquiries to trace the copyright owner in order to have reasonably concluded that the author died 70 or more years earlier. Such research must be undertaken before embarking on their copying or merchandising venture.

The US draft legislation would require prospective users of copyright works to conduct a 'good faith, reasonably diligent search' before declaring a work 'orphaned'; if the copyright owner subsequently appeared and claimed breach of copyright, financial compensation would be limited to 'fair market value' – a much lower level than would currently be the case. Creative artists' organisations in the US have recently mounted a campaign against the draft legislation, along the following lines.

The proposed new law would act as a 'perverse incentive' for prospective users of copyright works to declare them 'orphan' – prematurely, cynically, and without duly diligent research – and effectively render them copyright free. Furthermore, if the creator subsequently emerged to claim breach of copyright, they would only be entitled to a 'reasonable' licensing fee. This would place the artist copyright owner in a far weaker bargaining position than is the case under the current law, because any threat of litigation would be hollow: the prospective user would know that the costs of a lawsuit would far exceed the cost of a 'reasonable' licensing fee. Then there is the very practical problem of conducting an image search: unlike searches for literary works which are readily recognised by word search engines, Google Images, for example, currently relies only on file names to find targeted images and has not yet developed search technology for specific images.

One facet of the draft US legislation reveals the likely reason for its introduction: the draft bill would place the burden on artists to register their works (with some organisation) to prevent them being declared 'orphan'. The obvious organisation with which to register would be the US Copyright Registry – the very office that initiated, drafted and is driving the new legislation. Why would the Registry want to do this? When the US government signed Berne in 1989, Congress amended US copyright law to comply with Berne's requirement that ownership of copyright must be automatic (ie that copyright ownership should arise as soon as a work is made). This meant the abolition of the then longstanding US legal requirement that all authors had to register their works with the federal Registry in order to acquire their copyright. It also meant that for the past 18 years or so the Registry has been looking for a new role in the federal copyright scheme. Hence, it is suggested, its drafting of the new Orphan Works Act/Bill in terms that would drive authors again to register their copyrights – not in order to acquire copyright (since that would violate Berne), rather to prevent their works being declared 'orphans'.

There is an arguable case to be made for international and national reform of copyright law in relation to orphan works, especially to facilitate copying orphan works by organisations such as archives, museum and gallery collections, wishing to make and store digital images of them. In the UK, the Government's Treasury Department commissioned a major independent review of all intellectual property law in 2005. The report, conducted by former Financial Times editor, Andrew Gowers, was published in December 2006 and included two specific recommendations for orphan works. First, that the UK Intellectual Property Office (UKIPO) should publish clear guidance on the parameters of 'reasonable search' for orphan works, in consultation with rights holders, collecting societies, rights owners, and archives. Second, that by the end of 2008 UKIPO should establish a voluntary register of copyright, either on its own or through partnership with database holders (albeit acknowledging that international legal obligations – such as Berne – would need to be changed). Proposals or consultations by UKIPO on these recommendations have yet to emerge.

One way of dealing with orphan works, which has attracted wide international respect and support, was put in place in Canada. The Canadian Copyright Act makes provision for dealing with 'unlocatable works' that have been published, but whose copyright owner cannot be found. The Canadian Copyright Board examines a prospective copyright user's search processes and, if satisfied by them, issues a non-exclusive copyright licence including a specified licensing fee that the board collects and sends to the relevant creator's collecting society (such as the Canadian Copyright Licensing Agency). If the true author/artist has not been identified and traced within five years of the issue of the Board's copyright licence, the collecting society is permitted to use the fee for the benefit of its general membership. These arrangements only operate within Canada for Canadian creators, and do not appear to offend the fundamental Berne rule that copyright ownership must be automatic and must not, therefore, involve registration.

Registration is the fundamental difference between the Canadian model and the schemes currently proposed in the US and recommended for the UK. Therein lie problems: if artists were required to register their works to prevent their becoming 'orphaned' in future, it would create a great administrative burden – particularly for illustrators, photographers, printmakers, graphic artists and designers, most of whom can produce large numbers of works relatively quickly. Registration of each and every image could be very costly: whatever organisation provided a copyright registration service, it would have to charge a registration fee to the artist/registrant.

It is hoped that the many creators' organisations in the US, which are united in their opposition to the registration provisions in the Orphan Works Act/Bill, succeed in persuading Congress to rethink; and that, if and when UKIPO issues a public consultation document on orphan works legislation, the same or similar registration proposals are not put forward for the UK.

© Henry Lydiate 2008


'Orphan works' are copyright works that have no identifiable or traceable owner under international and national copyright laws, and are therefore allowed to be freely copied and merchandised.

This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.