29 November 2019CopyrightMarina Espitia Dager

Orphan works: Classifying the unknown

The object of copyright is to protect authors of literary, artistic and technological works: artists, performers, publishers, producers of records and video and radio broadcasters.

In accordance with Mexico’s Federal Copyright Law (LFDA), the works protected by said law are original creations that may be distributed or reproduced in any form or at any time. Article 4 of the law states that protected works can be classified according to their author, their communication, their origin and the creators who participated.

According to its author, the works are divided as:

Known: when the work contains the mention of the name, symbol or signature with which its author is identified;

Anonymous: when the work does not mention the name, symbol or signature that identifies the author, either by his/her will, or because such identification is not possible; or

Pseudonyms: the works disclosed with a name, symbol or signature that does not reveal the identity of the author.

In spite of the classification contained in the LFDA, there is a term that has gained strength in recent years, from the digitisation of works, such as manuscripts, printed books, photographs or other printed material that were part of library collections. They are known as “orphan works”, so named when the authors or owners of economic rights are not identified or, if they are named, it is not possible to locate them despite a previous search having been made by the person who wishes to make use of said work.

The problem with this type of work arose from the fact that the digitisation of a work is considered to be a reproduction, so it is necessary to have the authorisation of the author or the owner of the economic rights, because otherwise such behaviours can be considered illegal in accordance with the laws of the countries.

Different solutions

Different countries have looked for a way to solve this problem. In the member countries of the EU for example, this type of work can be used by a beneficiary entity in order to be made available to the public, provided that such acts are performed without profit.

In countries such as Japan, South Korea, India and Canada, when a person wishes to use an orphan work, s/he must go to the corresponding authority and request a non-exclusive licence to use the work.

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