Orphan Works, Abandonware and the Missing Market for Copyrighted Goods

The subject of ‘orphan works’ and ‘abandonware’ is gaining legal attention lately. It concerns the status of copyrighted works which are still within the term of protection but are no longer commercially available to the public. This paper examines the question of orphan works and abandonware from a law and economics perspective. Orphan works and abandonware are classified into five types depending on their causes, characteristics and assumptions: commercial abandonment, strategic abandonment, temporary abandonment, unknown ownership, and unlocatable ownership. Economic analysis of these five types of orphanhood and abandonment suggests that the efficient solution to the problem of unavailability and unlocatability is different for each type of abandonment and orphanhood. Finally, existing legal solutions together with a proposal for reforming copyright to a renewable system are examined, and further analysis on this proposal concludes that this coupled with a threat of compulsory licensing might be an effective way of solving the orphan works and abandonware problem.