Wednesday, 25 April 2012

Aurelia J. Schultz

Fewer Orphans in Sudan?

A few weeks ago, this Little Leo had the opportunity to attend a conference on orphan works sponsored by a local law school. It was a good conference in many ways and participants represented a diverse array of copyright perspectives.  As discussions about defining and solving the orphan works problem progressed, two themes took center stage: “here’s what Europe’s been doing,” “here’s what the US has been doing.” 

The solution-seekers should look a little broader in their quest for ideas. One place to start is the Sudanese Copyright Act.

There are lots of different aspects to what has been dubbed “the orphan works problem.” And there is not a consensus on exactly what fits into that basket and what’s left strewn on the table waiting for the next basket.  One of the situations that falls into some iterations of this basket is those works where the author is known and known to be deceased but the current rightsholder is unknown. The Sudanese Copyright Act has a provision that deals specifically with this issue.

Authors can dispose of their economic copyrights as they see fit via their will. This includes prohibiting publication or setting a future publication date for unpublished works.  However, “where the author dies intestate or leaves no heir the Minister may order that the work shall be in public domain.” (Art. 20(2).)

Wills provide a written record that is generally recorded at a probate office or other such registry. This makes tracking down the new owner a bit easier. Passing copyright ownership to others via testamentary disposition is not very unusual in copyright acts. However, having a means for works to enter the public domain when the author dies intestate is unusual. – At least this Little Leo hasn’t come across it before.

Intestate succession often results in the dividing of assets among many heirs. By allowing the work to enter the public domain instead of falling under multi-party ownership, the Sudanese Copyright Act prevents that work from being held in the unlicensable, unusable state of orphan works.*

When authors die without an heir, having their works enter the public domain actually aligns with how tangible property is generally treated. In fact, this exact treatment of copyrighted works was suggested at the orphan works conference by Lydia Loren who sees the public as the remainderman when it comes to intellectual property. Sudan’s copyright act may be a great place to start for exploring this further.

*Since a person can usually only have heirs if the person dies intestate (as opposed to beneficiaries of a will), the phrase “dies intestate or leaves no heir” is a bit confusing. I’ve chosen not to address this here since that would make the post too long.

Aurelia J. Schultz

Aurelia J. Schultz

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