Finding a Home for Orphan Works: Will a Human Rights Perspective Help?

Abstract: Copyright has traditionally been considered as a right that has a social function. Thus, among the various justifications for its existence, it is the utilitarian or instrumentalist justification that has often been hoisted in order to assess how well it serves the needs of society. From its inception as a concept, copyright has been justified as a necessary evil that, to quote Macaulay, “ought not to last a day longer than is necessary for the purpose of securing the good”. Accordingly, works temporarily protected by copyright should revert to the public domain immediately upon the expiration of the limited grant. But despite the benefit of historical record from whence to look back to understand the true nature of copyright, modern society appears to continue to grapple with the idea of copyright. Part of the reason why the development of copyright seemed to have lost its instrumentalist nature is the fact that while copyright interest is organized, the interests at the opposite end of the spectrum (i.e., the users) suffer from a collective action problem. Nevertheless, there is an increasing awareness that the continuous expansion of copyright is indeed detrimental to the public domain. This awareness has led some copyright scholars to write in support of a more robust public domain and to organize movements in retaliation for the continuing advance of the so-called copyright expansionists in what has been depicted as a “copyright war”. One flashpoint that has impelled public domain activists to action is the seemingly innocuous problem of orphan works. Its existence has been blamed on a copyright term that has been described as being obscenely long. The problem impacts on productivity inasmuch as new works are prevented from being created due to permission issues. Governments and the business sector are themselves constrained in their search for workable solutions by international and national legal frameworks that make it impossible to restore the system to what previously worked. Google, a company whose name is considered by many as being synonymous to creativity and innovation, has serendipitously stumbled upon a private-ordered solution to the orphan works problem through its Book Search Project. As a profit-driven entity, however, concerns have been raised on the propriety of allowing it to usurp what otherwise would have been the role of the legislature. Still, a judicially decreed Settlement Agreement that will allow it to exploit vast amounts of orphan works is better than not being able to deal with the said orphans at all. A discussion of these issues – be it on the general issue of copyright balance or on the more specific issue of Google’s treatment of orphan works – would be further enlightened by a human rights perspective. Human rights provide a new paradigm that could bring the conflicting interests to agree on a unified and reconciled understanding of a balanced copyright-public domain relationship.