In the so-called “information society”, new technologies have exponentially facilitated information creation, distribution and manipulation, in this process being comprised the reproduction, distribution and public communication of works protected by copyright. Digitalization, Internet, Bulletin Board Systems (BBS), hyperlinks, exchange of files through peer to peer (P2P) networks and web blocks make possible, at any time, the global access to intellectual works, disrupting the economic exploitation rights of copyright owners, redefining the traditional concepts of “reproduction”, “distribution” and “public communication” and generating changes in the exceptions and limitations to copyright.
Such is the disruption caused by the new technologies and internet with respect to the rights of economic exploitation of copyright owners that there are those who maintain that in the digital field, information circulation, being comprised works protected by copyright, should be free, giving origin to the school of thought called “Free Culture” which certainly impinges upon copyright and under which arose movements such as Free Software, Copyleft, Creative Commons, widespread Public Domain and within the latter, “Orphan Works”, all of which propose, pretty much, a sort of “De facto Public Domain” in which it is allowed the use and free access –and in some cases unrestricted- to intellectual works that circulate in this sphere.
Copyright has traditionally granted in favor of its owner an exclusive right –be it understood as monopoly- to the patrimonial exploitation of the intellectual creations but which is limited in time, in order to establish a fair equilibrium between the interests of the authors in receiving the fruits of their work and the interests of society in taking advantage of the knowledge contained in the intellectual creations to the benefit of society, the cultural and educational progress and the healthy recreation. Nevertheless, in the field of new technologies and internet this monopoly is questioned and new limitations and exceptions intend to be and are established in terms of redefinition of this delicate and subtle equilibrium between the interests of the authors and those of society.
Supporters of the free and unrestricted use of the information in the digital field, comprising within it the works protected by copyright, support and promote licenses in keeping with this “free culture” thinking, such as free software, copyleft licenses, creative commons and widespread or de facto public domain. Copyleft, which is opposite to the term copyright, takes advantage of copyright but to authorize and allow the free reproduction, distribution and public communication of an intellectual work and the free modification, variation and transformation of said work under the same terms, in other words, that the modified, varied or transformed work be also free of being reproduced, distributed, modified, varied, transformed or publicly communicated, thus producing what is usually called in this field a viral effect. Although the term copyleft was born related to the development of free software and to the movement led and supported by Richard Stallman, it has currently extended to other categories of literary, musical or artistic works.
Copyleft as generic concept encompasses various types of legally formalized licenses, such as the “GNU General Public License” of which most of free software programs take advantage, such as Linux, which was one of the first projects of this type in taking advantage of this new form of creating and distributing computer programs and, as stated, has extended to encompass other categories of intellectual works. Other trend, born of the heart of Copyleft was the Creative Commons license which has managed to extend the concepts of collaborative, shared and horizontal creation, emerged in the field of open code software, in the field of musical creation, in the field of artistic creation and in the literary or academic field in general. Popularity of the movement Creative Commons, founded by Lawrence Lessing, lies mainly in the contagious idea of using freely and without greater limits the intellectual works in the digital field with the purpose that everybody creates and shares knowledge openly and without barriers, and, on the hand, in the fact that the extension of Creative Commons licenses is due not only to the efforts of their communication campaigns but also to the fact that they have legally adapted these licenses to the legislation of each country.
All the aforementioned Free Software, Copyleft or Creative Commons licenses have nuances that go from establishing that the author waives all rights in the work he/she has created, introducing the work in the Public Domain, to more limited nuances in which some restrictions to the commercial use of the intellectual work or even some limitations to the reproduction, distribution and public communication are established, for example, limitations to right of adapting or modifying the intellectual work. Moreover, in general terms, they are characterized for being free non-exclusive licenses, having world geographic scope; they do not require any registration; contain a clause limiting the use of the author’s or authors’ name who have created or contributed to create the intellectual work, guaranteeing subsequent modifications or variations thereof; obligate that the intellectual works be licensed in the same terms as the original work; and the only copyright they respect is the moral right of authorship.
It is in the same line of thinking inspired on the “free culture” in the digital field where appears the notion of what we are calling “extended” or “de facto” Public Domain in which emerges the proposal of the concept “Orphan Works”. The works with respect to which the legal protection term has expired and those that do not comply with the requirements established by law to be protected –such as non-original works, those with establish procedures, methods, mathematic concepts or express ideas or simple facts or data or news of the day or the official texts of legislative, judicial or administrative character– which are normally considered belonging to the traditionally understood “Public Domain”, are joined by those works which are placed in the Public Domain by express will of the owner of the right by Copyleft or Creative Commons and Free Software licenses and in turn those intellectual works which, despite being protected by copyright, their use without previous authorization of the owner of the right is legally allowed and in practice imply an exception or limitation to copyright. This is the case of the so-called “Orphan Works”, that is, those which owner of the right has not been identified or that, despite having been identified, has not been located after a diligent search.
The proposal of creating a legal framework for the so-called “Orphan Works” appears in the European Community on the initiative of those affected by digitalization and on-line accessibility of cultural material, who faced up to difficulties for obtaining copyright for the use and public offering of intellectual works whose author could not be identified or located. In the digital world, intellectual works are put on-line at the disposal of very wide public, including those protected by copyright. But it is not always possible to identify the owner of the right or, even if it is possible to identify the owner, it is not possible to locate said owner to obtain the necessary authorizations for using his/her work in the on-line environment. Hence, for educational and cultural purposes and to favor the preservation and on-line accessibility of cultural material in the benefit of society, it has been proposed to allow digitalization of these intellectual works and put them at the disposal of the public without the need of the author’s previous authorization.
Now then, this exception or limitation to copyright is not and must not be unrestricted. It must be subject to certain parameters and requirements as to the persons who are allowed to reproduce the orphan works (libraries, archives, museums, research centers); the categories of works that will be considered as ”orphan works” (books, magazines, newspapers, printed matter, audiovisual works, musical works, etc.); the requirement of performing a “diligent” and in good faith search of the author; and the minimum criteria to be followed so that this search is understood as diligent, such as checking index card files and catalogs of works, official legal deposits, data base of entities of collective management, inter alia; and establishing the authorized uses for orphan works such as reproduction and offering to public for purposes of public interest and cultural and educational diffusion and non-commercial purposes.
In short, we believe that in this proposal an in any other implying an exception or limitation to copyright, the so-called three steps rule must be followed as principle in the field of copyright to the effect that any limitation or exception to exclusive copyright must be limited to certain specific cases, provided that normal exploitation of the work is not threatened and provided the legitimate interests of the owner of the rights are not unreasonably prejudiced (Article 9.2 of the Bern Convention and Article 13 of TRIPs).