Bouncing Back from Oblivion: Can Reversionary Copyright Help Unlocking Orphan Works?

Abstract

The importance and potential of mass digitization of cultural heritage institutions in Europe is well known, as also the stalemate created by the difficulty of clearing the rights of these works that are mostly out of commerce and whose right holder is not known or locatable. European legislators tried to address this stalemate by introducing a copyright exception for these so-called Orphan Works, which can be digitized and published after carrying out a Diligent Search. However, as the rules to implement this Diligent Search are quite demanding, and the sources to be consulted are largely inaccessible, cultural institutions struggle to get their collections out in the digital world, so that cay they can have a second life. Presumption of copyright ownership, moreover, make this picture even more blurry. After a work is created, it is delivered to a complex web of potential copyright transfers and attributions, which make the quest for rightsholders potentially endless. The reversion of copyright, which returns to the author under certain conditions (time lapse, inactivity of the publishers) adds complexity as it very much differs from country to country. The analysis of data from the EnDOW project in conjunction with ongoing and recent research (Towse 2018, Heald 2018, Dusollier 2014, Kretshmer 2012) shows that Reversionary Copyright, farm from being an outdated and scarcely useful tool (Bentley&Ginsburg 2010), has great potential to relieve the problem of Orphan Works, if correctly adjusted and interpreted.