INTRODUCTION

The orphan works problem is one of the major challenges to copy- right law today.1 This problem has been extensively publicized and ampli- fied by the Google Book Search case, which demonstrated that the orphan works problem is a serious obstacle to any large-scale digitization project. Individualized clearances of copyrights seem to be inappropriate and even impossible for large-scale digital library projects such as Google Book Search in the U.S. and Europeana in the EU. The problem has been la- beled “a tragic problem”2 and needs to be solved in a proper way.
This article will first discuss the problem of orphan works and analyze its causes and roots. It will then discuss and evaluate some leading sugges- tions and models proposed or carried out by some countries concerning orphan works. Finally, it will propose a legal framework to solve the or- phan works problem with the objective of facilitating lawful, cross-border online access to orphan works.

I. THE ORPHAN WORKS PROBLEM

An orphan work is generally defined as a work protected by copy- right, but whose rights holder cannot be identified or located, after a dili- gent search. Since orphan-work status can only be determined after a diligent search, the definition of orphan work shall incorporate a require- ment of diligent search. Reasons for a work to be orphaned are many. The passage of time, death, business insolvency, etc. may result in great difficulty in finding the copyright owner. In some cases, the name of the creator or copyright owner of an orphan work may be known, but other than the name no information can be established, meaning that the rights holder cannot be located.