Identifying or locating a copyright owner to request permission to use their work is not always easy. The U.S. has no provision in its Copyright Act to allow use of so-called orphan works. Canada has an orphan works provision for use of unlocatable copyright owners. You can use this provision in Canada when copyright permission cannot be obtained.
Orphan Works in Canada
Unlike the U.S. and many other countries, Canada has a mechanism in its Copyright Act to help obtain permission to use content in which the copyright owner is unknown or cannot be located. This provision has existed since 1988 and it allows the Copyright Board of Canada to provide licenses for the use of published works where the copyright holder cannot be identified or located.
How to Obtain Permission to Use an Orphan Work in Canada
For the Copyright Board to issue a license, you must convince it that every effort has been made to locate the copyright holder. Proof may include the following:
- evidence of correspondence and phone calls with the rights holder or a representative including any copyright collectives or estate executors, associations or organizations relevant to the work or copyright holder
- contacting publishing houses, libraries, universities, museums
- extensive online searches.
If the Board is satisfied by your efforts, it may, at its discretion, give permission (i.e., issue a license) to use the work. This permission is non-exclusive; that is, others may be given the same permission for the same work.
The permission is valid only in Canada; it does not protect you from infringement proceedings for uses outside Canada, even if the author is Canadian. For example, if you post the work on the Internet, you will be responsible for uses outside of Canada if the work is accessed outside of Canada. You could limit access outside of Canada through technological measures, or you could investigate the laws in other countries to see if permission is required for use of the same work in other countries.
The license issued by the Board is subject to any terms and conditions, including royalty payments, which the Board may establish.
The copyright owner may, within five years after expiration of the licence, collect the royalties that are set out in the license. A copyright owner cannot terminate a license granted by the Copyright Board unless this is part of the terms and conditions of the licence granted by the Board.
Who May Apply for an “Orphan Works” License
The unlocatable copyright owner provision is open to any individual or organization trying to access a particular copyright work, including librarians, teachers, students, researchers, curators, archivists, publishers, sound and filmmakers, and business people. The unloctable copyright owner provision only applies to published works. There is no equivalent provision for unpublished works.
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