Copyright, Orphan Works, and Wills

November 26, 2012 Hull & Hull LLP General Interest Tags: 0 Comments


Stuart Clark blogged last week on the subject of J.R.R. Tolkien’s estate seeking to assert rights in his creations. This blog is about the opposite problem. What happens when someone wants to use the works of a deceased creator, and nobody knows who owns the rights? These abandoned products of human creativity become orphan works. 

The orphan works issue received much attention over the past several years when Google attempted to scan the contents of the shelves of some academic institutions in order to make them available through their Google Books service. Litigation was started by groups representing authors and publishers respecting the copyright in the books. A settlement agreement between the parties was rejected by U.S. Courts because, amongst other things, it would have given Google the right to use orphan works sitting on the shelves of libraries. 

The number of orphan works is staggering. For example, one estimate by the British Library (the national library of the United Kingdom) pegs the number at 40% of the books in their collection. This is an astonishing amount of human knowledge that is frozen out of the public domain, solely because the copyright persists and the rightsholders cannot be located.

Canada has crafted an innovative response to this problem. Our own Copyright Act, at section 77, grants the Copyright Board of Canada the power to grant license to these works, provided the prospective licensee can show that they have made reasonable efforts to locate the authors. 

Nearly everyone has copyright in something.  If you’ve ever written an article, essay story or poem, authored a computer program, done a painting or a sketch, or even taken a photograph, you probably own the copyright. 

Copyright persists for the lifetime of the author, plus 50 years in Canada. If an author fails to deal with his or her copyright by way of will, it will be subject to the rules of intestacy. The problem, however, is not the allocation of the rights as between the author’s heirs, but notice of the assignment of these rights so that the author’s creative, academic or literary legacy is not lost to the public at large. 

Although most intellectual property will not be as valuable as the works of Tolkien, it should be something to consider when preparing your will and planning your estate. You never know when someone will want to turn your blog post into a major motion picture.

Ian M. Hull

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