Orphan works issue as a "twentieth century black hole" – justification for adopting solutions at international level

Joanna Banasiuk (Uniwersytet w Białymstoku), “Orphan works issue as a "twentieth century black hole" – justification for adopting solutions at international level”

The possibility to extend the digital storage of works and facilitate their use on the Internet1, in a way that has yet to be properly specified, poses a plethora of challenges that copyright law has to face along with the necessity to verify essential paradigms of copyright protection. The issue of orphan works, which is called a "twentieth century black hole" and which has been hotly debated not only in the European Union but also in the USA, is a good example of the problem. While so far the rights of the rightholder have taken priority, which in practice was based on the need to obtain permission to use the work, nowadays the orphan works policies show some significant change in this respect. In the spotlight are the interests of users, namely to allow them to use the work without the consent of the rightholder when the rightholder is not identified or located despite a diligent search for the rightholder. At EU level the debate concerning orphan works (to allow their use without the consent of rightholders who are either unidentified or cannot be located despite diligent search efforts) has focused primarily on the issue of their mass digitalization2 in connection with the European Digital Library (EDL) project and the necessity to scan and make the largest possible volume of European library stocks available online3. As former European Commissioner Viviane Reding highlighted, „Important digitisation efforts have already started all around the globe. Europe should seize this opportunity to take the lead, and to ensure that books digitisation takes place on the basis of European copyright law, and in full respect of Europe's cultural diversity. Europe, with its rich cultural heritage, has most to offer and most to win from books digitisation. If we act swiftly, pro-competitive European solutions on books digitisation may well be sooner operational than the solutions presently envisaged under the Google Books Settlement in the United States4”. 

Even though regulating the issue of orphan works in the regional system is a positive step, it seems that adopting solutions at the international level would be more effective. Reasons to draw attention to the international copyright protection are becoming more relevant in the context of the expanding global market for cultural goods and means of media used to disseminate literary and artistic works across borders. More and more often it is emphasized, that there is a need to regulate copyright issues on an international level. It seems that this is justified, in particular due to the following circumstances. Firstly, this is dictated by the nature of the goods which are the subject of copyright protection - works and objects of related rights have a transnational dimension and value, and as a good legal assets, are characterized by "cross-borders". This means that they can not be spatially locate, and that they can be exploited simultaneously in several places. Secondly, international agreements in the field of intellectual property have an impact on both the internal law of the States parties to the Treaty, as well as the shape of the EU legal solutions. This is particularly evident in relation to those international agreements to which the European Union is a party (e.g. The TRIPs Agreement, the Treaty of the WIPO Copyright). Thirdly, the consequence of this is the fact that the existing system of international conventions leads to a copyright or related worldwide.