Journal of Intellectual Property Law & Practice Advance Access published online on December 19, 2006
Journal of Intellectual Property Law & Practice, doi:10.1093/jiplp/jpl191
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© The Author (2006). Published by Oxford University Press. All rights reserved
The orphan works dilemma and museums: an uncomfortable straitjacket
LEGAL CONTEXT: Orphan works are copyright works where the right holders cannot be found. Without the consent of the right holder, a user faces potential liability for the unauthorized use of the work. Museums have a duty to make cultural materials available to the public. However, the orphan works problem may pose obstacles to the normal functioning of a museum. This article explores the problem of orphan works as it pertains to museums.
KEY POINTS: Legislative solutions are being considered in addressing the problem of orphan works in the United States. The museums, as a lobbying group, initially advocated for a safe-harbor rule. The U.S. Copyright Office recommended a limitation on remedies rule. Any legislative solution tackling the orphan works problem must balance the benefits of using orphan works against the exclusive rights of creators.
PRACTICAL SIGNIFICANCE: This article will inform readers of the orphan works problem. In addition, the lobbying efforts of the museums in trying to obtain desirable legislation are explored. By understanding the various interests involved, readers can better anticipate the possible orphan work solutions that the United States may adopt.
Key Words: The position of orphan works, those which are apparently protected by copyright but where there is no means of pinning that copyright to an author or ‘parent’, is one that has given rise to much debate, particularly in the United States. • In practice, the vast majority of orphan works remain defenceless against unauthorized and illegitimate use. However, the risk of substantial damages and adverse publicity deters financially prudent and socially responsible organizations such as museums and art galleries from making commercial use of them. • The merits and demerits of some proposals for resolving the orphan work problem are reviewed in this article, which takes a sympathetic view of the needs of all the various interest groups
* The author is a recent law graduate of the University of Maryland School of Law. His research interests are in the field of intellectual property law and Chinese law. He can be contacted at simon_teng{at}yahoo.com.