Information Technology Reference
In-Depth Information
holders. Cultural heritage institutions engaged in digitizing projects
derive legal certainty from this permission.
A guarantee to rights holders about the use of their works means
that all rights need to be cleared on the basis of either an individual or
a collective licence. For born-digital works, this implies that permission
is needed for online availability, and for analogue works it implies that
permission is needed to make a digital copy. Getting permission touches
directly on the question of identifying the rights holder. The impos-
sibility of finding or tracing rights holders hampers comprehensive,
large-scale digitization and online access projects as well as other uses,
and means that libraries, museums, archives and other non-profit
institutions may be prevented from fully exploiting the benefits of
information technology to carry out their preservation and
dissemination mandates. Some uses of orphan works may fall within the
scope of existing exceptions, but even these specific exceptions would
not permit much activity involving orphan works (British Screen
Advisory Council, 2006).
Approaches to a solution
Several approaches to the problem of orphan works are possible, via a
legal solution or via contractual arrangements. The law provides for an
orphan work to be used under certain conditions when users have
proved that they cannot find the rights holder after a reasonable search.
A legal solution to the problem could either include an exception in the
existing copyright law or introduce a licensing system by which users
obtained a licence from a government or judicial body prior to use and
after demonstrating their reasonable search. Both approaches have
advantages and disadvantages. An exception-based system is easy for a
user and has low costs and high efficiency. The user is only required to
pay a rights holder if the rights holder appears and claims a fee. The
licence that is issued stipulates the terms of use and thus provides the
user with legal certainty, especially when that licence is issued by a
government body. A great disadvantage is that the user has first to
conduct a diligent search and has to pay a licence fee even if the rights
holder cannot be traced.
UK legislation currently provides for the use of a work if it is not
possible by reasonable inquiry to ascertain the identity of the author
