Bhanu Pratap, LLM (Intellectual Property), Amity Law School Noida
ABSTRACT
Orphan works, defined as copyrighted materials whose owners cannot be identified or located after a diligent search, pose unique and persistent challenges in copyright law. These works, which include books, photographs, films, music, and other creative expressions, hinder innovation, cultural preservation, and access to knowledge. Their ambiguous legal status creates significant risks for users such as libraries, museums, educational institutions, and content creators, deterring the digitization and dissemination of cultural heritage. This issue has become particularly relevant in the digital era, where preservation and accessibility are increasingly prioritized. The lack of a unified global framework for orphan works exacerbates these challenges. In the absence of clear legal guidance, users often face the dilemma of either risking copyright infringement or refraining from using the work altogether. This legal uncertainty undermines the goals of copyright law, which include promoting creativity and public benefit. Various jurisdictions have attempted to address the issue, but their approaches differ significantly. For instance, the United States has adopted a “good faith” approach with limited safe harbor provisions, while the European Union has enacted a directive allowing certain uses of orphan works by public institutions under specific conditions. However, developing countries often lack comprehensive policies on orphan works, leading to further disparities in access and legal protection. This research critically examines the existing challenges of orphan works and its lack of management which effects on public access. By comparing legislative approaches, the study identifies strengths, weaknesses, and best practices. Furthermore, the research advocates for proposed solutions, and harmonized global legal framework that incorporates elements such as diligent search requirements, registration systems, and limited liability provisions to facilitate the lawful use of orphan works. This research also explores the examine of case studies and judicial interpretation on disputes related to orphan works. Such a framework could provide greater certainty and fairness for users while respecting the rights of copyright holders. Ultimately, addressing the orphan works dilemma is vital for ensuring equitable access to cultural heritage, fostering innovation, and supporting the goals of copyright law in a rapidly evolving digital landscape.
Keywords: Orphan Works, Copyright Law, Cultural Preservation, Legal Reform, Intellectual Property.
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