will never reach the public. Society at large is being precluded from fostering enhanced understanding.
The cultural outrage over orphan works is a by-product of copyright expansion, the retroactive effect of some copyright legislation, and the intricacies of copyright law. A study from the Institute for Information Law at Amsterdam University (IViR) attributed the increased interest in the issue of orphan works to the following factors: (1) the expansion of the traditional domain of copyright and related rights; (2) the challenge of clearing the rights of all the works included in derivative works; (3) the transferability of copyright and related rights; and (4) the territorial nature of copyright and related rights.[1] In Europe the problem is further complicated by the difficulty of determining whether the duration of protection has expired. As mentioned earlier, the complexities related to copyright term extensions, such as war extensions, blur the contours of the public domain, thereby making more uncertain and costly any attempt to clear copyrights.
The clearing process can take from several months to several years. In many instances, the cost of clearing rights may amount to several times the digitization costs. The unfulfilled potentials of digitization projects worsen the cultural outrage over orphan works in terms of loss of opportunities and value that may be extracted from the public domain. The challenges of digitizing works today were widely investigated at the sixth Communia workshop in Barcelona. The European institutions are also aware of the potential loss of social and economic value if the orphan works problem remains unsolved. As the European Commission noted, “there is a risk that a significant portion of orphan works cannot be incorporated into mass-scale digitization and heritage preservation efforts such as Europeana or similar projects”.[2] Communia Policy Recommendation #9 urges a solution to the orphan works problem.
As additional tools of commodification, term extension of copyright has been aided by copyright subject matter expansion, multiplication of strong commercial rights, and erosion of fair dealing prerogatives, exceptions and limitations. Firstly, the expansion of copyright has caused the contraction of the structural public domain. The protected subject matter has been systematically expanded from books to maps and photographs, to sound
- ↑ See P. Bernt Hugenholtz et al., “The Recasting of Copyright 2%: Related Rights for the Knowledge Economy” (November 2006), report to the European Commission, DG Internal Market, pp. 164—66.
- ↑ Commission Communication on Copyright In The Knowledge Economy, COM (2009) 532 final (19 October 2009), pp. 5—6.
