It’s not uncommon for old copyrighted work to make its way into new creative. Media types frequently borrow, reference and tribute other works in their creations. Usually, it’s just a matter of signing an agreement with the original copyright owners (well… and paying them, too), but what happens when a copyright owner can’t be found?

The issue of unlocatable owners of copyrighted works – also known as ‘orphan works’ – presents an indisputable dilemma for the media industry, and the laws that govern their usage vary between Canada and the U.S., which is an issue for those hoping to sell down south.

Under current Canadian and American law, copyright protection automatically begins the moment content is created; it is no longer contingent upon notice, registration, renewal or other formalities.

While this might simplify things for creators and rights holders, the system does create some unintended consequences. For example, since formal registry is not required, no comprehensive centralized listing of copyright owners and their respective works is available. Instead, information about copyrighted works is scattered among databases, catalogs and other sources.

And, in some instances, the information is simply not recorded anywhere. Moreover, the search for copyright owners gets further complicated by continuous mergers and acquisitions, bankruptcies and other assorted business activities.

Although collective societies in Canada, the U.S. and elsewhere provide a valuable service to copyright users through their administration of rights of multiple copyright owners, countless esoteric and other works are not covered by the collectives.

At the present time, Canada and the U.S. take markedly different approaches with regard to unlocatable copyright owners.

In typically Canadian style, Canuck creators working at home just have to prove that they

really, really tried. Section 77 of the Copyright Act

allows individuals or companies who have

‘made reasonable efforts to locate the owner’ to submit an application to the Copyright Board

(www.cb-cda.gc.ca) for a non-exclusive licence. If the board agrees that an adequate search for the missing owner has been carried out, it can issue a licence with specific terms and conditions.

If the legal owner of the work eventually comes forward, they may, ‘not later than five years after the expiration’ of the licence, collect the royalties the board spelled out in the licence. Failing that payment, they can then choose to take the new creators to court.

Things are much different down south. U.S. copyright law, unlike its Canadian counterpart, currently lacks a provision specifically addressing orphan works.

Under U.S. law, unless a potential user of an orphan work that has been copyrighted in the U.S. can justify its use under several narrow exceptions (most notably through ‘fair use’), the user must obtain permission from the copyright owner in order to legally use it. [Ed: and fair use privilege has been remarkably curtailed in the last few years – even for documentaries. You have been warned.]

Thus, potential users of U.S. orphan works face a major quandary: Should they go ahead and use the copyrighted works, thereby risking potential liability from the lawful owners, or should they do without?

The U.S. Copyright Office admits it has an orphan works problem. In a January 2006 report on the subject, the office ‘recommended statutory language’ that imposed limits upon the monetary and injunctive relief available to a copyright owner if the infringer ‘performed a good faith, reasonably diligent search to locate the owner’ and ‘provided attribution to the author and copyright owner of the work, if possible and as appropriate under the circumstances.’ Very Canadian of them.

Several bills have been introduced into the U.S. Senate that called for limits on damages associated with the reasonable use of orphan works; the establishment of an electronic database to facilitate the search for media copyrights; and studies on remedies for small copyright claims and copyright deposits. So far, none have passed into law, but efforts continue.

Clearly, orphan works pose a substantial problem for filmmakers and other users of copyrighted works. The Canadian government’s chosen approach with respect to orphan works might have its weaknesses, but it provides some legal protection for both users and original copyright holders here at home. Canadian creators should know, however, that this protection exists within our borders alone.