An Orphan work is a creative piece of work copyright protected by an author who is unidentifiable, which means that it is impossible to contact the author of the work since there is no information about them, they can’t be traced or because the person is dead or presumed so. It is very easy for a work to go “viral” in the age of the internet and easy file sharing, and spread so far as to detach itself from the creator of the work.
So Is It Okay To Share Orphan Work?
There is no specific law pertaining to orphan works. The work is entitled to copyright protection only when the owner or the author of the work establishes their rights over it. The actual reason why these works were considered before the popularisation of the internet surge was to recognise the vast expanse of books and other works liable for copyright whose author could not be found. An interesting way to look at the situation is finding the owner of all the diaries, photographs and audio files found under the ruins of wars. Everyone knows they belong to someone, but no one knows who to ask. The problem with an orphan work is that it neither gets used anywhere because of the complications involved, nor can it be of use to anybody. Providing these works with copyright ensures that the purpose for which the work was created is met, and it does not go to waste. Giving the people who find the work the copyright is almost like a “finders keepers” situation, but it helps give the work viability and an identity.
The Copyright Act of 1957 recognises orphan works under Section 31A of the Constitution. As per this section, to use an orphan work, a person could apply for a compulsory license. The only condition was that the author would have to be untraceable, dead or unknown and only for an unpublished work originating in the country. The Amendment of this Act in 2012 changed this provision under section 17 of the same, widening the scope of the section to include any work, including ones not originating in the country, be it published, unpublished or communicated to the public. The licensee must also show that they had failed to find the true owner of the work, even taking reasonable steps in doing so.