Impact And Existing Challenges Of Orphan Works - An Analysis

Author: LawSphereX

Category: General Law

Published: 2026-08-23T20:16:14.934993+00:00

Updated: 2026-08-26T17:11:15.605+00:00

IMPACT AND EXISTING CHALLENGES OF ORPHAN

WORKS: AN ANALYSIS

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. Legal Uncertainty- Access and Utilization Barriers

I Bhanu Pratap from Amity Law School Noida had made up the intellect efforts in writing the

article on existing challenges of orphan works. Orphan works are the existed copyrighted works whose owner is unable to identify or locate, this creates a primary existing challenges for use of orphan works, without the known of the owner the users will lack in potential utilization of abandoned works as to avoid copyright infringement this may make the management stuck in legal dilemma1. Complex issues which arise while managing the orphan works certainty are- the death of copyright holder without any clear heir, a company that owns the rights ceases to exist, ownership records are not traceable. Lack of statutory clarity enhances the apprehension of copyright infringement suit against concerned user of orphan works from the original owner if they reappear even after diligent search was done to locate author.

Uncertainty in granting permission to use of work and lack of statutory organization disproportionately effects to the libraries, museums, archives and educational institution in preserving the orphan works and disseminate cultural heritage. Users having fear in mind of violating the rights of unknown copyright holders which limits the usage of orphan works, deters creativity and invention. The chance to enhance already-existing cultural assets is lost since movie makers, writers, and other creators are unlikely to employ the orphan works to create their new creations. Ambiguity under present legal status limits on access to researchers, educators, and artists to use existing works to create new work and education opportunities. Extended Collective Licensing provides fluency in licensing process of orphan works through authority i. e. , Collective Management Organizations.

This system helps in regulating and managing the mass digitization of orphan works and enable the creators to use the unidentified works without being granted specific permission. This licensing scheme promotes clearance rights to concerned users effectively applied to countries like Sweden, and UK, and in case of reappear of copyright holder then they will get monetary compensation from the profit gain by the creators. Another licensing scheme is Orphan Works Licensing Scheme (OWLS), this scheme empowers national bodies to grant license for use of orphan work after submission of satisfaction report of diligent search to find the author by the applicant user. UK Intellectual

1 Analysis of Orphan Works in Copyright Law & Legal Issues, (Sept. 4, 2024),

https://www.khuranaandkhurana.com/2024/09/04/the-remotely-charted-territory-of-orphan-works/.

Property Office has the authority to grant license as per this scheme. This licensing scheme will benefit India as well, they have various historical records and cultural contents but existing copyright laws has lacuna to deal with the orphan work issue. Management of orphan works data and implementation of technological solution like Digital Copyright exchange, this digital marketplace lists orphan works and the information pertaining to the owners if they reappear or found later. European Digital Library is the best example of digital access and management of unidentified work with proper legal requirements. This licensing and digital access will improve the India’s situation in management of orphan works challenges which includes various cultural and historical assets. WIPO also came up with various attempts but unable to resolve the complex at global level2.

Impact, High search & Transaction costs Inability in use of orphan works demonstrate the negative impact on economic opportunities for derivative creations, adaptation, and commercialization. This may impact on industries such as education, cultural heritage, publishing, films, and technology that seek to use the existing works to create new content or any other work. Lack of usage of orphan works enhance loss in economic value and effects on the business potential of the work, both the author and concerned user of orphan work faced loss in the economy. Clear barrier towards the innovation, creativity, absence of specific legal aspects makes the potential existed works locked away from access to use. Lack of legal clarity imposes burden on education sector includes libraries, museum, and archives.

Improper provisions and schemes for diligent search may cause high financial loss in identifying the author, as if they use the orphan works without consent of the author then there is a high chance of imposition of legal cost. There is an obvious need for stringent provisions pertaining to diligent search under the administration of orphan works in order to combat the high legal expenses and infringement suits. Unclear regulation drives a complicated use of orphan works nationally as well as globally though cross border collaboration, that causes misery for the economy. Lacuna in implementation of legal framework managing orphan works which limits the commercialization of the orphan works and restrained on access to use the work by the concerned users, it also impacts on education,

2 Ronaldo Das, Unlocking the Vault: Legal Keys to Access Orphan Works, NLIU Law Review, (Nov. 12,

2024), https://nliulawreview.nliu.ac.in/blog/unlocking-the-vault-legal-keys-to-access-orphan-works/

social, cultural heritage, and technology sectors at the global level. 3 Although legal restrictions prohibit their usage, orphan works might be included into the expansion of online education, streaming services, and digital archives. Businesses may profit from orphan works through licensing agreements, subscription-based access, and educational sales, but copyright restrictions prevent these possibilities. Because to limitations on orphan works, the worldwide market for e-books, digital heritage, and historical documentaries is still immature. International & National Complexity In era of globalization, access to use of orphan works is the major challenge across borders especially in the digital distribution and global internet.

Clear absence of specific legal principles at international sphere, as both the recognised IP treaties like Berne Convention and TRIPS still not address the issue of orphan works in unified way. To resolve the issues of orphan works, indirect provisos, or the fair use doctrine, are construed; nevertheless, this may vary depending on the specifics of the case and is not an obvious solution at every level of conflicts. Article 13 of the TRIPS, article 9(2) of the Berne Convention, and article 10 of the WIPO Copyright Treaty made up the clear directives about imposing and determination of scope of limitation of and exception to copyright protection which will apply on specific situation and condition that shall include the complexities in the management of orphan works.

4 World Intellectual Property Organization (WIPO) also came up with various strategies, conferences, seminar for awareness related to orphan works and their administrative challenges. WIPO Standing Committee on Copyright and Related Rights came up with many conferences to address the issue of orphan works, it involves many member states from WIPO, Berne convention, and also includes some members of the UN who are not a part of WIPO or Berne convention. WIPO SCCR directly make recommendations to WIPO general assembly to implement laws related to orphan works, intergovernmental and non-profit organization also takes part in the committee. • Copyright Orphan Works and WIPO Standard Workshop: committee on WIPO 3 Coree Thompson. Orphan Works, U. S. Copyright Law, and International Treaties, 23, AJICL, 788, 788-789 (2006).

4 Supra note 2

standards held up the virtual meeting on 7th May 2024, from 13:00 to 15:00 Geneva time, to discuss the issue linked to orphan works, and proposals for improvement of copyright orphan works metadata for WIPO standards to enhance the identification and core management of the orphan works. 5 • EUIPO registry for orphan works and conference on out of commerce works: WIPO launched a virtual webinar with collaboration of European Union Intellectual Property Office on 25th May 2022, from 13:00 to 15:00, Geneva time. EUIPO came up with strategies and informative data related to orphan works management. EUIPO create a separate data base for out of commerce works, copyrighted works which are not active in the market or which are not commercially available or no longer with commercial effect that are out of commerce works.

Committee members proposed certain solutions like proper diligent search mechanism, well established licensing models, and enhanced legal principles. 6 • International Federation of Library Associations and Institution (IFLA) came up with discussion on the SCCR forum to deal with the problems faced by the libraries and archives in collection of orphan works for the public interest. IFLA represents 150 librarians over the globe and describes the requirement of proper administration for use of orphan works and balance the rights between concerned users and authors to maintain the public interest7. Various nations also come up with the legislation attempts to deal with the complicated management of orphan work. United States tried to get a legal framework to deal with orphan work issues Orphan works act 2008, but the act was not passed.

It continues to grapple with the absence of explicit laws pertaining to the fair administration of unidentified works. The US Copyright Act of 1976 currently lacks explicit legislation to address orphan works; instead, it relies only on the fair use concept to address the issues, which isn't always effective. The European Union (EU) has established a legal framework to address the issue of orphan 5 Committee on WIPO Standards (CWS). Eleventh Session on Proposals for Improvement of Copyright Orphan work Metadata in WIPO Standard, at Pg. no. 2-6 (4 to 8 Dec. 2023)

6 WIPO Webinar. EUIPO’s Registries for Orphan and Out-of-Commerce Works, 13:00 - 14:00 Geneva time

(25th May. 2022).

7 IFLA. 32nd session by WIPO STANDING COMMITTEE ON COPYRIGHT AND RELATED RIGHTS on

Orphan works (12th May 2016).

works through Directive of the European Parliament and of the Council on certain permitted uses of orphan works. EU Orphan Works Directives 2012 derives structured framework which includes proper diligent search provision, centralized data collection of orphan works, accountable administration, and empowers copyright board to manage the licensing scheme for orphan works between author and concerned users for public interest. Canada also has the ability to deal with orphan work challenges mentioned in their concerned copyright act, which derives the proviso which demonstrate well established licensing scheme for the user to apply for the use of copyrighted works whose owner is unable to locate or found.

Application for license of orphan work shall filed before copyright board of Canada and it shall require certain condition for payment of compensation to the owner if they reappear, so the owner shall be entitled to claim for royalty from the user of their work8. In India’s context, although there are no particular provisions pertaining to the administration of orphan works in the Copyright Act of 1957, it does derive several broad ideas and mechanisms that may offer solutions to deal with such works. Indian copyright statue outline two types of works i. e. , anonymous works and pseudonymous work. Anonymous works are those works whose author or owner is unknown or uncertain, and the pseudonymous work are those work in which the author has not disclosed his identity and conceal their real name. e. g. , Goerge Orwell, Mark Twain9.

The Indian legislation supports compulsory license of the orphan works through specific proviso mentioned under section 31A of the copyright act 1957. User shall comply with all legal principles of the act pertaining to perform diligent search to locate the owner of the concerned work and apply to copyright office board, if satisfied, the Copyright Office may issue a license for the use of the work, subject to payment of royalties10. The provision of the act deals with the compulsory licensing provision for unpublished or orphan works. This provision enlists the challenges related to author of the work is dead, unknown or not able to trace.

The applicant shall apply for license before the copyright board but to show the efforts of diligent search to locate the copyright owner, if board satisfied can issue compulsory license to use the work with certain condition and subject to payment of

8 Orphan Works in Canada: Unlocatable Copyright Owners, copyrightlaws.com, (Sept. 5, 2022),

https://www.copyrightlaws.com/orphan-works-in-canada-unlocatable-copyrightowners/#:~:text=An%20orphan%20work%20is%20a,provision%20has%20existed%20since%201988. 9 V.K. Ahuja, Law Relating to Intellectual Property Rights 100 (Lexis Nexis, Gurgaon, 3rd edn., 2017)

10 The Copyright Act, 1957 (No.14 of 1957) s. 31A

royalties11. Section 52 demonstrates the fair use exception principle. This provision specifically does not deal with orphan works usage but describes certain exception for use of copyrighted work for limited condition i. e. , any using of work for private research, study, education purpose, criticism, reporting, libraries and museums for preserving works. These sometime apply to orphan works but limited in nature with no proper specific legislation pertaining to orphan work management12. India is a member of concerned IP treaties like Berne convention and TRIPS, but these international laws also lack in legal implication and status of orphan works. Need for the reforms related to diligent search, well established licensing schemes, centralized data collection of orphan works, and need to enact laws like EU directives on orphan works.

Lack of legal status of orphan work is enhancing various challenges over the globe includes jurisdictional issue, A jurisdictional issue is one of the main challenges in the administration of orphan works, where all existing works are used through digital access across borders, making it difficult to apply relevant laws. These complexities and unaccountable framework impact the cultural heritage sector, education sector, economy sector as well as technological sector to implement new works and content at global level13. Case studies on Orphan works

1. Author Guild v. Google Books 201514

Orphan works have impacted on various industries, one is Google, in this case studies there is conflict between Author Guild vs Google. In this case google digitized millions of books including orphan works but author guild who are the group of authors and publishers had filed a suit for copyright infringement against google for using the books content without authorization of the owners of the book. In 2015, court derives that the act of google falls under fair use exception mainly for the non-commercial purpose like- education and research. This case made a strong point about the issues that orphan work was facing as a result of the widespread digitalization of books. Due to legal uncertainty, the problem of orphan works in

11 The Copyright Act, 1957 (No.14 of 1957) s. 31

12 The Copyright Act, 1957 (No.14 of 1957) s. 52

13 Bzhar Abdullah Ahmed, The Situation of Orphan Works under Different Jurisdictions, 20, CHI.-KENT J.

INTELL. PROP. 1, 30-34 (2021)

14 Authors Guild v. Google, Inc., 804 F.3d 202, 116 U.S.P.Q.2d (BNA) 1423 (2d Cir. 2015)

Google Books persists; if the owner resurfaces, they will be subject to legal action.

2. Authors Guild Inc. v HathiTrust15

This case study highlights the fair use doctrine as a defence against copyright infringement in the context of use of orphan work books through mass digitization for non-commercial purpose which includes research, preservation and accessibility. Hathitrust is a digital library partnership which contained millions of books, copyrighted material that denotes as orphan works, but the plaintiff author guild and various individual author filed a suit for copyright infringement against the mass digitization done by the Hathitrust. Court made a order in favour of hathitrust observing that the use of copyrighted works falls under fair use concept, access towards knowledge, non-commercial use, there is no evidence of any harm to the business potential of the plaintiff by the defendant.

3. Vaacha: Museum of Voice16

A museum situated in tejgadh, Gujrat which functions as forum or platform of expression of

Adivasi creativity. It is having many historical document description, oral histories, ancient languages of concerned community, traditional artistic works of local Adivasi community, and songs. Many of the works collected and preserve by the museum are having unknown authors which are recognised to be as orphan works, in order to chronicle, conserve, and guarantee the transfer of these archives to future generations, museum authorities work in coordination with people of the local community.

4. Rock Garden of Chandigarh

A government officer named Nek Chand Saini started building the rock garden in 1957 using

waste products, abandoned resources, and discarded objects. The garden is an example of an artistic creation that is made by repurposing materials and turning them into artistic expression. This creation in India clearly depicts that how unknown works i.e., orphan works been utilized and transform into new creativity as cultural projects.

15 Authors Guild, Inc. v. HathiTrust, MANU/FESC/0677/2014

16 Vaacha Museum, https://bhasharesearch.org/adivasi-academy/vaacha.

5. National Library of India17

The Kolkata-based National Library of India launched the Digital Library Access initiative, which has a variety of rare and ancient books whose owners cannot be contacted. In the absence of legal certainty on the management of orphan works, the institution finds it difficult to strike a balance between compliance and the gathering of unknown works. Proposed solution and Conclusion There shall be need for possible solution and policy reforms relates to the orphan work like EU directives have. Following solution required:

1. Fluent diligent search mechanism18

Need for specific legislation pertaining to manage the diligent search requirement under orphan works, which provides fair provision related to diligent search and accountable process to use of orphan works. Reformative aspects improve the systematic search and enhanced the chance of identification of owner of the work. EU has very efficient legal directives to centralized the meta data on orphan works which helps to locate the author of the unactive works or abandoned works. Current legal status in various countries like India and US, still struggles on the part of search of the owner of the orphan work even after performance of extensive search due to lack of legal clarity.

2. Limitation on liability19

Ineffective legal provisions make it more difficult for copyright holders to sue for royalties from infringers who have conducted a reasonable and careful search for them. If the concerned user uses the copyright holder's work to produce new material or an initiative, the copyright holder must be compensated fairly in order to claim and be entitled to the royalties. Even if the offender had acted in good faith and conducted a reasonable search to find the owner, improper laws increased the risk of infringement for the use of orphan works, which may result 17 Intepat Team, Copyright Regulation for Pseudonymous, Anonymous, and Related Creative Works in India, Intepat IP (Nov. 4, 2024), https://www.intepat.com/blog/copyright-regulation-for-pseudonymous-anonymousand-related-creative-works-in-india/.

18 Abhishek Chakraborty, Orphan work and it's possible solutions, (May 12, 2018),

https://www.linkedin.com/pulse/orphan-work-its-possible-solutions-abhishek-chakraborty/.

19 Supra Note 1

in costly litigation that would bind both parties.

3. Licensing scheme and extended collective licensing

The procedure by which a user requests permission to use copyrighted orphan works—works whose creator cannot be located—is known as licensing for orphan works. This legally enforceable clause derives necessity to conduct a diligent search to find the creators of orphan works. A license to use the orphan work will be granted by the copyright board, subject to certain restrictions and requirements for the user. If they emerge and claim the usage of their work, the owner will get reasonable royalties. These licensing programs are regulated in nations such as Canada and Hungary. Extended collective licensing is also the best method for better management to access to use of orphan works. This system allows authorized collecting societies which includes various authors and publishers to grant license for use of orphan works. This will reduce legal uncertainty and transaction costs.

European Union i2010 digital libraries manages and stores various books, audiobooks, digital works related to cultural and scientific heritage and collaborates with national authors to grant license to the user with imposition of fee for orphan work use, that implements collective licensing management. 20

4. Centralized database and enhancement of public domain

The centralization of data on orphan works facilitates accurate searches and a readily available database that offers details on copyright holders and makes it easier to locate them. To address the issue of orphan work, enhance the public domain is must which is reduced due to excessive copyright protection law. The Public Domain Enhancement Act, which is being presented to the US House of Representatives, proposes a copyright system that is renewable. If copyright holders do not pay a small maintenance charge after 50 years from the date of first publication and then every 10 years after that, works may become public domain under this system. Orphan Works entering as public domain provides fluent access to use those works to create new content or use for public interest.

Sometimes, copyright owners allow their work to be used for non-commercial purposes with specific restrictions and no fees if the work is

20 Supra note 1.

utilized for non-profit and educational purposes. These can be implemented through open licensing access.

5. Global Uniformity21

International copyright rules might be harmonized by treaties or accords, which would lower obstacles to cross-border use of orphan works and encourage wider access and use. The fair management of orphan works is ensured by implementing legislative changes, which facilitates access to use and improves cooperation between the user and the copyright holder. Conclusion In the field of copyright law, orphan works continue to be a major obstacle that impedes access to information, creativity, and cultural preservation. Despite the possible answers provided by legal and regulatory initiatives, there are still gaps in international coordination and real-world application.

A mix of technology advancements, legislative changes, and international cooperation will be needed to address these issues and guarantee that orphan works may make a significant contribution to society without violating the rights of their authors.

21 Supra note 2.