The subject matter of copyright law, which falls under intellectual property law provides the author of an original work such as literature, music, or art with exclusive rights. The purpose of this law is to ensure the development of creativity and innovation by allowing creators to protect their works legally and reap the financial benefits from them. But today, with the enormous spread of the Internet, copyright faces new problems, especially in figuring out how to deal with orphan works.

The term orphan works refers to copyrighted materials that are impossible or difficult for someone to locate or identify. These materials can include books, photographs, films, music, and all other creative works. Orphan works pose difficulties for individuals and organizations who wish to use them because the copyright status is unclear, and copying or distributing works without permission may result in damage. The concept of orphan works has become notably significant in the digital era, as a large amount of content emerges from online forums in the sharing economy, and the public property rights associated with them remain ambiguous.

The Indian Copyright Act of 1957 identified orphan works by their own definition under Section 31A. In accordance with this section, a person could have been authorized to use the orphan work on a compulsory basis provided that it is well known that the author had already died or remains untraceable or unknown and also to cover only an unpublished work born in India.

The section was amended in 2012, expanding the reach of this provision under section 17 of the Act so that it applied to any work (not just Indian), whether published, unpublished, or communicated to the public. Additionally, the licensee must show that it has taken reasonable care in finding out the true owner of the work, and failed to do so.

Orphan works are copyrighted materials that cannot be identified or tracked down by their rightful owners; hence, using them without permission is impossible. They are usually kept forgotten and hidden from the public in archives or storage rooms. The issue of orphan works is a complicated one that is worth exploring in the sphere of copyright law.

The issue of orphan works resides in how to achieve a balance between the promotion of cultural heritage and the defence of copyright holders' rights. On one side, access to orphan works can enlarge sources of cultural and educational knowledge as well as ensure their conservation, distribution, and utility. On the other hand, if orphan works are employed without authorization, they might violate copyright owners' rights either at some point or when they finally come out or prove their authorship.

Copyright law is primarily aimed at fostering creativity through the provision of rights to creators to exploit their works. Nevertheless, orphan works serve as a barrier to realizing this aim by restricting access to an immense collection of creative works. Many such works form the basis of original artistic, literary, and cinematic productions; hence the absence thereof may hamper the development of new works.

Besides, orphan works might suffocate the creativity of an artist who intends to base their new work on another author's old story. Fear of copyright violation and potential legal repercussions can dissuade artists from adopting orphan works as source materials, thus restricting their creative expression. This leads to a decrease in cultural diversity and inhibits the evolution of the arts.

The problem of orphan works does not just refer to artistic creation but also to historical and cultural items, for example, photographs, manuscripts, and movies. These works are highly important since they help preserve our cultural heritage as well as provide a deep understanding of our history. Unfortunately, it is the absence of knowledge about copyright owners that interferes with these works being digitized, archived, and open to the public.

The question of orphan works is highly complex, and no easy solution can be proposed to deal with it. Nevertheless, an effective legal mechanism should address orphan works while considering the interests of authors and readers. This mechanism must enable the utilization of orphan works in a manner that respects copyright holders' rights at the same time.

A solution that would effectively deal with this issue is to have a diligent search requirement. This means that before using a work, either an individual or an organization should search for the copyright owner and make sure they are located; in case the owner cannot be found, then it would be considered an orphan work, and a license can be obtained from a responsible authority.

Yet another approach would be to put in place a copyright protection system with a time limit for orphan works, through which these works will become public domain after a while and anyone can use them without any restrictions. This option is also well-developed in countries such as Canada and the United Kingdom, where it has been shown to strike a good balance between authors' rights and public accessibility.

Among various measures that are taken by many nations in order to help use orphan works legally with certain conditions, are legislative acts or guidelines that regulate this type of problem. In this case, the typical steps usually consist of setting up a procedure of diligent search for rights holders and an institutional framework to facilitate the use of orphan works when the copyright holder can't be traced. For instance, the European Union's Orphan Works Directive specifies the required diligent search effort and provides a licensing scheme for cultural heritage institutions to use orphan works.

In the US, orphan works have been raised and debated in legislative discussions and debates. A study conducted by the U.S. Copyright Office in 2006 on orphan works recommended reforms that can be legislated to resolve the problem. As a result, in 2008, the Orphan Works Act aimed at creating a system under which the use of orphaned work would be possible only if one meets certain criteria, such as conducting reasonable searches for authors or owners of copyright; however, this legislation did not become law.

One of the ways to manage orphan works is through the actions of certain organizations and initiatives that have formulated practical ways of dealing with them despite the lack of coherent legislation. Libraries, archives, and museums, for instance, usually conduct diligent searches and risk assessments before releasing orphan works to the public. In a few situations, collective licensing schemes or orphan works registries might have been proposed as vehicles through which these resources could be used, yet also find a way to compensate rights holders if they do come forward.

In brief, orphan works are a vital element of copyright law that should not be left unattended. They negatively affect the process of creation and access to cultural treasures and also create obstacles for copyright holders as well as users. Creating a fair and viable legal framework that deals with such issues is important in order to achieve the balance between creators' rights and the interests of society. Thus, it becomes necessary for legislators to understand the significance of orphan works and incorporate them into copyright law in an appropriate manner.

The orphan works issue is complicated and layered, involving copyright law, cultural heritage, and the issue of access to information. The challenges and opportunities related to orphan works are not likely to disappear as technologies continue to change at an increasing pace. It is important that initiatives towards effective solutions are grounded in a comprehensive understanding of how copyright holders' rights can be balanced with users' rights and public interest.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565