Property and Culture: A Case Study on Orphan Works

Abstract

With the advent of the UK's withdrawal from the EU on uncertain and fluctuating terms, several concerns arise within copyright law. Part of the concern lies in the very nature of EU copyright law which, unlike counterpart satellite areas such as patent, design and trade mark laws, is unitary in parts, and is subject to continuous EU reform. Part of the concern also lies in the nature of several copyright principles which have no UK counterpart, and which have been newly introduced. Whether or not the UK reverts to a pre-EU situation, we need to consider whether EU copyright law following Brexit will be interpreted by reference to prior CJEU law, and if not, how will jurists treat these EU-derived principles? This article focuses primarily on the orphan works phenomenon, with some reference as well to out-of-commerce works, especially those residing within collections of publicly accessible cultural heritage institutions.