An Orphan work is a copyright protected work whose author is unidentifiable, which means that it is not possible to contact the author of the work due to the fact that there is no information about him/her, or he/she can’t be traced or because the person is dead. In the age of the internet and easy file sharing it is easy for a work to go “viral” and spread so far as to detach itself from the author. Think about the tons of photos you receive, forward, and share on Facebook, WhatsApp, Twitter and the like.

Finders Keepers?

The law does not protect Orphan works, it is only when the author or the owner of the work establishes his/her rights that the work is entitled to copyright protection. The real reason why these works were considered, way before the internet surge, was to give a recognition to the innumerable books and other works liable for copyright whose author could not be traced. Think about all the diaries, audio files and photographs found under the ruins of innumerable wars. The failure of an orphan work is that it makes it impossible to be showcased or used and can’t be of use to anybody. Giving these works a copyright would ensure that the real purpose for which it was created is met, and it does not go as a waste. Giving the people who find it, a copyright is almost a “finders keepers” situation, but it helps give the work and identity and a viability.

The (Indian) Copyright Act 1957 recognised orphan works under Section 31A. According to this section a person could apply for a compulsory license to use an orphan work. The only condition being that the author was dead, un-traceable or unknown and only for an unpublished work originating in India. The Amendment in 2012 changed this provision under section 17 of the Act, Section 17 widened the scope of the section to any work (not just Indian) be it unpublished, published or communicated to the public. It is also important for the licensee to show that it had taken reasonable care in finding out the true owner of the work and had failed to do so.

There are two sides to this coin, one is that it helps in using the works for a better cause and generate money which no one is losing. The other being that with more than half of India armed with a phone it is not hard to record something and spread it like wildfire. Maybe at the end of the day the owner of the actual work losses track of his work and maybe this work is used to generate huge sums by someone else. A recent example would be the controversy that ensued when the public relations office of the Prime Minister uploaded a photo for Dhanteras with greetings from the Prime Minister, the image later was claimed by a photographer living in America who had taken the photograph at his house and uploaded it on the photo sharing website Flickr. Though he did not file for a copyright infringement he did get on social media to ask for acknowledgement, when questioned the uploaders stated that they had found the image on Google and considered it an image open for download.

It is rather difficult to find out the actual author of a digital work. As his work gets uploaded the websites and apps strips it of any way of identifying the originator. With saving files becoming child’s play, it is difficult to trace a work to its originator. A way of controlling this would be to devise a system where each recording taken by a phone or uploaded or shared via the internet be stamped with a unique code that would help identify the exact owner. Websites and apps like Facebook and WhatsApp strip the upload of the metadata (the data that holds the information about the file) while uploading which makes it impossible to trace the originator of the recording. A way of upholding the metadata would lead to more open and responsible file sharing. As well as a smother system of dealing with infringements.

Until a system is devised that helps trace the owner of the upload, the orphan would keep wandering in cyberspace, unless found by someone who would use it; and the author would find it very difficult to prove that it was his creation. A mere watermark is not enough and if one is serious about ones work it is apt to file for a copyright before leaving it to cyberspace.

This article has been authored by Shwetha, an IP Law practitioner.