Orphan works are works whose copyright owner is unknown or cannot be located. The extent of the phenomenon of orphan works from all works protected by copyright is large, for example, according to the National Library in Great Britain, about 40% of all works protected by copyright are “orphan works” [1].
When a work is an orphan work, it is not possible to obtain a license to make any use of it, except for the uses permitted by law. This situation leads to a legal risk – using a work without a license may be considered a copyright violation.
Section 27a of the Copyright Law, which was enacted as part of Amendment No. 5 to the Copyright Law, 2019, is intended to regulate the use of “orphan works”.
In this article we will explain what orphan works are, what the problem of orphan works is and how the legislation of Section 27A of the Copyright Law solves this problem.
What are “orphan works”?
An “orphan work” is a work of any kind, which is covered under copyright protection, but whose copyright owner is unknown or cannot be located. There can be many reasons for this: the ownership of the work passed to heirs whose identity or contact details are unknown, a dissolved corporation owned the copyright in the work and it was not known what was done with its assets, etc.
The problem of orphan works
When a work is orphaned, it is not possible to locate its owner and obtain a license to use it legally. This situation leads to a legal risk – using a work without a license may be considered a copyright violation. Therefore, potential users may avoid using orphan works, because they do not know when the copyright owner will appear and what his demands will be. As a result, many works are not used and there is a fear that these works will be forgotten.
The solution – Section 27A of the Copyright Law
Section 27a of the Copyright Law, which was enacted as part of Amendment No. 5 to the Copyright Law, 2019, allows the use of orphan works under the following conditions:
“27a(a) Use of a work whose copyright owner is unknown or unlocated is permitted under these conditions:
(1) the user acted with reasonable diligence to discover or locate the copyright owner of the work, as the case may be, before use;
(2) The user has clearly stated in the same way in which he uses the work, that the use is made according to this section and that the copyright owner has the right to request that the user cease the use as well as contact details for him;
(3) The user stopped the use or received a license for future use after receiving a notice from the copyright holder.
(b) If the use of the work as stated in subsection (a) is commercial, these provisions shall apply in addition to what is stated in that subsection:
(1) the user published a notice on the Internet or in a daily newspaper a reasonable time before the use;
(2) the user has paid the copyright owner an appropriate royalty after receiving notice from the copyright owner; A proper royalty as mentioned will be paid for the period that begins on the date the use of the work begins.
(c) Reasonable diligence will be examined, among other things, considering the nature of the work and the time of its creation.
(d) The Minister may establish in the regulations actions that will be considered reasonable diligence and contact details as stated in subsection (a)(2).
(e) The provisions of this section do not detract from the powers of the general guardian according to the General Guardian Law, 1978.”
That is, in accordance with section 27a, the first condition for the use of an orphan work, for a non-commercial purpose, is that the user acted with reasonable diligence to discover or locate the copyright owner of the work prior to use. According to subsection (c), reasonable diligence will be examined, among other things, considering the nature of the work and the time of its creation.
In addition, according to section (a)(2), the user must state that he is using the work according to section 27a of the law and that the copyright owner has the right to ask him to stop using the work and to provide contact details. According to section (a)(3) the user is required to stop using the work after receiving notification of this from the copyright owner, unless a license has been obtained.
Subsection (b) states that regarding the use of an orphan work, for a commercial purpose, additional conditions will apply to the conditions mentioned above (regarding the use of a work for a non-commercial purpose). According to section (b)(1), the user must publish a notice on the Internet or in a daily newspaper before use. According to section (b)(2), if the copyright owner has contacted him about the matter, the user must pay the copyright owner an appropriate royalty for the period of use of the work.
It will be noted that this section has not yet been interpreted in the ruling but was mentioned in the ruling in the case of CF (Tel-Aviv District Court) 53689-10-17 Bardugo v. D. Eitan (published in Nevo, 16.8.20).
The legal situation in Europe
Directive 2012/28/EU of the European Parliament and of the Council on the fair uses of orphan works (of 25 October 2012) establishes common rules to enable the digitization and legal online presentation of orphan works. According to Article 3(6) of the Directive, the European Intellectual Property Office (EUIPO) is responsible for establishing and managing a single, publicly accessible online database of orphan creations.
The database allows the beneficiary organizations (publicly accessible libraries, educational institutions and museums, archives, film or audio heritage institutions and public service broadcasting organizations established in the member states of the European Union and the countries of the European Economic Area (EEA)) who wish to make use of orphan works as part of digitization projects, to have easy access for relevant information about them. These organizations will also register in the database works they have identified as orphans during their searches.
The database allows the rights holders to search for orphaned works, get contact details of the organizations that use them and put an end to the status of their orphaned works. The database also provides the beneficiary organizations and authorized national authorities with reports and statistical data on orphan works registered in the database.
The situation in the United States
The problem of orphan works arose in the United States following the enactment of the Copyright Act of 1976, which eliminated the need to register works protected by copyright (17 U.S.C. § 102).
In 2006, the US Copyright Office published a report regarding orphan works. The report stated that new legislation is needed to address the problem of orphan works. The report suggested that if a non-profit organization (such as a library) uses an orphan work and the copyright owner is later discovered, then the archive would be exempt from paying copyright infringement damages as long as it immediately stops using the orphan work. Also, if commercial use is made of an orphan work and the owner of the work is later discovered, the infringer will only be charged “reasonable compensation” from the profits, and the use can be continued.
The solution proposed by the US Copyright Office has received criticism from both sides. Several academics argued that this solution favors publishers, and disrespects archives and researchers [2]. The creators objected that the definition of orphan works would include many works that are actively exploited, and would deprive the creators of income for these works [3].
[1] British Library, Orphan Works and Mass Digitization (2007)
[2] Foster, Andrea. “Copyright Office Sides With Publishers in Proposal for Handling ‘Orphan’ Works”. The Chronicle of Higher Education:
https://www.chronicle.com/article/copyright-office-sides-with-publishers-in-proposal-for-handling-orphan-works-4407/
[3] Orphan Works and Extended Collective Licensing (ECL), National Writers Union (22 July 2015)