Abandoned But Not Forgotten
A Proposal for Orphan Works Use in Archives
Under Canadian copyright law, archives and other cultural heritage institutions (CHIs) cannot legally share and distribute any orphan works in their collections. Orphan works are copyrighted materials whose copyright holders cannot be located or identified. To prove that a work is truly orphaned, the proposed user must demonstrate that the copyright holders could not be located after a diligent search. The burden of this rights clearance increases for CHIs that have large collections of orphan works. This paper reviews the current legal context for using orphan works in Canada, and the shortcomings. I propose a new system for orphan works rights clearance based on two parts. Firstly, formalizing the requirements for a diligent search to make them clear and objective. Secondly, creating a less stringent set of requirements specifically for use by CHIs, so that it is feasible for them to do diligent searches for large collections of materials. This paper also discusses and refutes multiple arguments against the proposed system.
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Copyright (c) 2023 Elisa Kuhn
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