Digitalisierung und Zugänglichmachung verwaister Werke

Under traditional copyright doctrine prior authorization is, unless explicitly directed, always necessary to copy and to make works subject to copyright protection available to the public. The property rights approach causes substantial problems when the relevant copyright owner cannot be identified or located even after a diligent search has been conducted. Such works are known as »orphan works«. In May 2011 the EU Commission submitted a proposal for a directive to create a legal framework to ensure the lawful and cross- border online access to orphan works. The article argues that the orphan works issue is but an example of the main problem modern copyright legislation has to tackle: Subjective exclusivity rights in immaterial goods have become completely autonomous from their extralegal prerequisites and oblivious to the needs of the other social systems.The argument is unfolded in three steps: It starts with an examination of the »discovery« of the issue tracking it back to three intertwined developments: First, the retreat of formalities, particularly in U.S.-copyright law since the copyright reform in 1976, second, the ongoing expansion of the copyright terms and, third, the rapid rise of both, technological possibilities and user interest in widespread access to copyright protected materials. This sections shows that the orphan rights issue is a byproduct of modern copyright development. Ever since private individuals, corporations and government sponsored libraries have started to realize the dream of digital libraries they run into the serious obstacle of rights clearing in orphan works, an issue that raises distinct questions than the out-of-print-works.The second part of the paper presents a transaction cost based analysis of the trade off between property rights and accessibility in orphan works. It demonstrates that even from a purely economic perspective the social costs of an unmitigated system of exclusive rights in orphan works are too high for at least three reasons: First, it increases transactions costs, second, it creates an information asymmetry to the detriment of the potential user and, third, it ultimately results in a market failure. However, focusing solely on the economic aspect, would seriously neglect the societal aspect of the problem. Copyright law, although part of the legal system as such, belongs to other societal systems, too, such as science. Copyright law dictates the manners of how the information can be shared in each of these systems. Nevertheless, modern copyright law has difficulties to adapt to the sometimes conflicting needs of the other societal subsystems. This is particularly ironic in the case of orphan works. While the economic system does not necessitate exclusive rights here, the law awards those anyway. The concept of an exclusivity right has become a loose cannon. To mitigate this effect both, copyright legislation and doctrine, have to develop »access rules« (Wielsch).The first part of the final section analyses three basic models of such access rules for orphan works: First, self regulation approaches like prospective measures such as DRMregimens or private ordering models such as the-failed-Google Book Search Settlement. Second it looks into state regulation models such as government licensing, the creation of new exceptions or limitations or the limitation of available remedies for the copyright owner. Finally it examines models of regulated self-regulation such as an extend collective licensing scheme. In the second part I propose five prerequisites to evaluate the proposed access rules. First, it must guarantee effective access to the immaterial good in question. It must do so, second, assuring reasonably low search costs. Third, it shall be based upon the principle of opt-out. Fourth, remuneration should be due for a primarily economic nature of the envisioned uses of the orphan works only. Fifth, the solution must be reconcilable with both, Union and In