Copyright law’s reason for existence is to encourage the creation of new artistic, dramatic, literary and other works by granting creators the exclusive right (subject to certain exceptions) to decide those who may use the work. This exclusivity gives creators the opportunity to profit from their creative works, and, so the theory goes, enables society as a whole to benefit from the consequential increase in creative output. However, copyright does impose a cost on copyright users, who are usually forced to pay to access creative works that they would otherwise be able to access for the cost of a photocopy or a download.
The rationale for copyright’s exclusivity breaks down, however, when dealing with orphan works. Orphan works are works that are clearly in copyright, but where the copyright holder cannot be identified or contacted in order to seek permission to reproduce or adapt that work. This amounts to a loss to society as the copyrighted work simply sits there unused as the potential user cannot be certain that they are allowed to use the work. With the extension of copyright terms and the explosion of online content (often created anonymously or pseudonymously) that has occurred over the past 20 years, we anticipate that orphan works are likely to become a more significant issue.
A European Commission advisory group, known as the Comité des Sages (literally, the “committee of wise people”), has submitted a number of proposals to improve the European Commission’s policies on digital culture and its library of digitised cultural artefacts. The group argues that European countries should require a system of copyright registration, where copyright holders would have to register their creations in order to obtain copyright protection (copyright registration does exist under US law but registration is not a precondition to obtaining copyright protection). The group also suggests that non-profit libraries, galleries and museums should be allowed to digitise copyrighted works that are out of commercial distribution.
These proposed changes are controversial, since they would involve giving up one of the most basic principles of copyright law as set out in the Berne Convention: the idea that copyright arises automatically once a work is fixed in a medium, not to mention the significant change in behaviour that would be necessary for people to protect their rights. However, the purpose of copyright law is to balance the interests of copyright holders and users for the benefit of society, and the Comité des Sages’ proposal may well lead to further discussion about how extensive copyright protection should be, and how easily it should be obtained.
The Comité des Sages’ report is available here