Sarid and Ben-Zvi, ‘A Theoretical Analysis of Orphan Works’

In American libraries, museums, and archives, there currently are tens of millions of cultural treasures, such as photos, manuscripts, and sound recordings, which hold extraordinary academic, cultural, and historical value. But these valuable items, known as ‘orphan works’, remain out of public reach. Orphan works are subject to copyright, but their copyright owners cannot be located. These works are stuck in limbo – as copyright works, they cannot be used without permission, but permission cannot be granted because the copyright owner is unknown. This exceptional predicament has not escaped the attention of legislators and academics, yet thus far, the United States has not established a coherent framework for dealing with orphan works. Other jurisdictions, such as the EU, Canada, and the United Kingdom, have frameworks in place, but data suggest that these are largely ineffective. Rather than freeing orphan works, they intensify the problem by requiring heavy investment in clearing copyright.

This Article advances an original approach to this problem, by arguing that one ought to reassess the issue from the point of view of copyright theory. Current approaches in other jurisdictions and in academic writing focus on formulating practical, ad-hoc solutions to the orphan works predicament but do not consider how these solutions cohere with the philosophical underpinnings of copyright law. To correct this oversight, we analyze orphan works through the lens of four prominent theories of copyright – the utilitarian, natural rights, personality, and democratic culture theories – and propose a novel typology of orphan works. Analyzing orphan works through a theoretical lens allows for subtle distinctions between different categorizations of orphan works that are in fact dissimilar and which the current legal frameworks and academic literature lump together. Thus, we assert that not all orphan works are the same and should not be treated as such. Rather, we identify a spectrum of orphanage and explain how different theories approach different types of orphan works. We then propose general principles for a practical framework that is attentive to copyright law and is aligned with copyright theory.

Sarid, Eden and Ben-Zvi, Omri, A Theoretical Analysis of Orphan Works (December 18, 2021). Forthcoming, Cardozo Arts and Entertainment Law Journal, volume 40, 2022.

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