Mass Digitization of Copyrighted Works: Harmonizing the Orphan

Work Solution in Malaysia

Nor Akhmal Hasmin

, Najwa Azizun

,Siti Marina Amit

Faculty of Law, University Teknologi MARA, 40450 Shah Alam, Selangor

Faculty of Law Universiti Kebangsaan Malaysia

Faculty of Law, University Teknologi MARA, 40450 Shah Alam, Selangor

norakhmal5559@salam..uitm.edu.my

Keywords: Orphan works, copyright, digitization, Industrial, Revolution.

Abstract: In the era of fourth industrial revolution, institution such as library, archive and museum around the world

has embarked on digitization process in displaying, storing, arranging and even preserving their collection

by using latest technologies. However, due to the complexity of the copyright law, digitization activity

could not be continued when the copyrighted works is classified as orphan works. Digitization of orphan

works without the consent of the lawful owner is amounting to unauthorised use. The elaboration of this

paper is to analyse the extent of orphan works problem in Malaysia that has defeated the dissemination of

knowledge and creativity through digitization. To analyse the issue, this paper employs doctrinal research

design and reference is made to the current legal position concerning orphan in the European Union under

the EU Directive on Orphan Work and the United Kingdom Copyright, Patent and Design Act 1988.

Finding indicates that, there is a gap in the Copyright Act 1987 that hinders effective digitization activity of

copyrighted works. This article also would like to suggest some improvement on the existing law as to

encourage digitization activity but at the same time protecting the interest of the owner of the orphan works.

1 INTRODUCTION

The fourth industrial revolution stimulates the

advances of science and technology and it goes

beyond the organizational and territorial boundaries,

comprising agility, intelligence, and networking

(Liao, Y., et. al. 2018). The transition to the new

digitalization era in a globalized environment, has

contribute to massive volume of knowledge,

information and data which are available online.

Mass digitization refers to projects to digitize all sort

of literary or artistic works comprehensively and

integrate them in a web or database (Murell, M.

2017). Digitization allows for information to be

organized and stored in digital formats using suitable

electronic devices because some of the information

is in the form of analogue and need to be converted

in digital form (Pedro Pina, 2016) and the digitize

information can be transmitted and accessible over a

network (Lucas-Schloetter, 2011).

The establishment of digital library, museum and

achieve by public and private institutions allows for

dissemination of knowledge and culture beyond

political boundaries. For instance, the availability of

digital library allows for unlimited storage of

information at much lower cost and the maintenance

of information is much easier compared to

maintaining physical collections that is costly. The

operation of digital library is not subjected to normal

operation hours, the information can be access 24

hours anywhere around the globe (Bamgbade, B.J.,

2015). The existence of virtual museum also has

changed the accessibility landscape where virtual

exhibition of cultural treasures can be explored from

our own home, classroom or anywhere else provided

that there is an internet connection (Shapiro, n.d.). It

allows the world’s cultural heritage information

becomes more widely available not only for

scholarly use but also for recreational purpose

(Laine-Zamojska; 2011). Moreover, virtual museum

allows for more freedom to manipulate the object in

collection, patrons can zoom in the image from

different angle which sometimes could not be done

with physical tour and the works of art that are

locked away from view and in private places is now

open to the public (Haber, A., 1998; Donghui et. al,

2017). Despite encouraging access to knowledge,

digitization is also important for the purpose of

Hasmin, N., Azizun, N. and Amit, S.

Mass Digitization of Copyrighted Works: Harmonizing the Orphan Work Solution in Malaysia.

DOI: 10.5220/0010051300560063

In Proceedings of the International Law Conference (iN-LAC 2018) - Law, Technology and the Imperative of Change in the 21st Century, pages 56-63

ISBN: 978-989-758-482-4

preservation and restoration of valuable literary,

artistic and political works. Digital preservation

strategy undertake to convert deteriorating analogue

or physical materials to create the high-quality copy

for preservation purposes (Iris, X. et. al., 2016)

In Malaysia, digital library is common among

higher learning institutions since almost all public

and private universities have their own online

collections such as Tun Siti Hasmah Digital Library

in Multimedia University, Open University Malaysia

Digital Library, and Perpustakaan Tun Abdul Razak

Digital Collection in Universiti Teknologi MARA.

As for digital museum, Teregganu State Museum

and Bario Museum are moving toward digitization

in exhibiting and preserving their collections. In

Europe and North America, the number of virtual or

digital museum is increasing, the Virtual Museum of

Canada for instance have over 3,000 Canadian

heritage institutions, a database of over 600 virtual

exhibits and over 900,000 images (Artefacts Canada,

2006).

However, despite various benefits arising out

from digitization activity, there is legal concern

when the digitized works is subjected to copyright

and the institutions that carried out such activity

failed to obtain permission from the copyright

owner. Although, failure to obtain permission is not

intentional but it was done because the owner of the

copyrighted works is unidentifiable or could not be

located and users of the orphan work still can be

subjected to legal action. This is possible when the

owner of the copyrighted works resurfaces or

reclaim their rights. Digitization process is under the

exclusive control of the copyright owner because it

amounting to reproduction and communication of

the protected works and authorization from the

owner is a must (San Tay, P. et. al., 2017; Section 13

(1) (a) of the Copyright Act 1987). If the would-be

users continue to digitize copyrighted works, they

will be subjected to expensive and tedious litigation

process in court and if found liable they will have to

compensate the owner (United States Copyright

Office, 2015; Nor Akhmal Hasmin and Nurul

Jananh Mustapha Khan, 2015).

If the rightful owner of the copyrighted works

could not be found, valuable works, not only in the

economic sense but historically and culturally,

cannot be exploited without the user being exposed

legal infringement (Urban, J., 2016). Therefore, to

avoid from legal liability it is better for the would-be

user of orphan works to forego the use of the work

entirely. In this situation, orphan works with

valuable information could not be shared globally

and the knowledge could not be fully exploited by

global citizens. Orphan work with great potential

will be locked away from the public. This has

defeated the purpose of copyright law, to encourage

dissemination of knowledge to the public and the

creation and new work by the public (Usadel, P.M.,

2016; Urban, J. 2016).

The issue of orphan work needs to be resolve

immediately, this is because the United States

economic impact to the country of leaving the

orphan works problem unsolved (United States

Therefore, it is the intention of this paper to examine

the legal issue pertaining to digitization of orphan

work from the perspective of the Copyright Act

1987 and reference is made to the legal position in

other jurisdictions namely the European Union and

United Kingdom for comparative analysis and

lesson learnt. The research paper adopts qualitative

research design because this research paper does not

involve any form of scientific or empirical research

whereby this is purely doctrinal and library-based

research paper.

2 THE CONCEPT OF ORPHAN

WORKS

The term orphan works is nowhere to be found in

the Copyright Act 1987 however, the interpretation

of orphan works is available in legislation form

other jurisdictions. Schedule ZA1 of the United

Kingdom Copyright, Patent and Design Act 1988

(hereinafter refers to as CPDA) states that, a work is

orphan when there is single rightsholder has not

been identified or located or when there is more than

one rightsholders in the work and none of the

rightsholders has been identified or located despite

the diligent search having been carried out.

Meanwhile, Article 2 (1) of the EU Directive on

Orphan Work (Directive 2012/28/EU) considers

work as orphan if none of the rightsholders in that

work or phonogram is identified or, even if one or

more of them is identified, none is located despite a

diligent search for the rightsholders having been

carried out and recorded.

According to Asian Patent Attorney Association,

orphan works refer to original works of authorship

of which a good faith prospective user cannot

readily identify and/or locate the copyright owner(s)

in a situation where permission from the copyright

owner(s) is necessary as a matter of law (APAA,

2015). Scholar such as Marybeth Peters provides

simpler interpretation, where an orphan works mean

Mass Digitization of Copyrighted Works: Harmonizing the Orphan Work Solution in Malaysia

works without clear indicia of ownership that are

protected by copyright (2008). Therefore, based on

the above interpretations, orphan work is a term used

to describe a work of unknown authorship.

3 ORPHAN WORKS IN THE

EDGE OF DIGITALIZATION

Orphan works posed greater challenge in digitization

activity, the most notable example to illustrate the

issue of orphan in relation to mass digitization is

Google library projects which was the world largest

digitization project (Murell, M. 2017). In 2013, the

project was subjected to legal suit from various

parties such as Actors Guild and Association of

American Publishers due to infringement of

the consent of the rightful owner. In 2005, Cornell

University Library submitted a comment to the

Notice of Inquiry Concerning Orphan Works, stated

that after spending more than $50,000 in staff time

working on the project, Cornell was unable to

identify or locate the rights holders of 198 works

which is around 58% of the group (Hansen, D.R.,

2013). The Carnegie Mellon University Libraries

also have the same issue, the institution outlined the

results of its own efforts to identify rights holders for

a sample of 368 books from its collections that it

sought to digitize (Response by the Carnegie Mellon

University Libraries, 2005). Excluding books that

were not in the public domain and did not contain

third-party visual materials, Carnegie Mellon was

only able to obtain permission from publishers for

35% of the books (Response by the Carnegie Mellon

University Libraries, 2005).

When discussing on the issue of orphan works

some might argue that orphan works are lacking

value either economic or artistic value therefore,

is supported by the statement that the author i.e. the

owner himself is reluctant to claim their right

especially the economic benefits thus rendering such

work less valuable (De Beer, J., 2009).

Unfortunately, such argument is inaccurate, because

though the works is orphan, but it might be

something that is invaluable either economically or

aesthetically (Janssens, M. C., &Tryggvadóttir, R.,

2016). For instance, artistic works such paintings,

design of antique accessories and unique sculptures

are valuable creations that deserve copyright

protection. Most of the image or visual art available

on Google search for instance is classified as orphan

work not because no one owns it, but the owner

could not be identified (Holland, B., 2015).

Whereas, archival documents like diary, journals,

old photographs, war footage and ancient maps are

carrying priceless information for a historian or a

filmmaker that intended to write and produce about

the related event. It is believed that, orphan works

are worthwhile, useful, and extremely valuable

(Janssens, M. C., &Tryggvadóttir, R., 2016). These

are the invaluable historical asset or cultural heritage

that can be protected through digitization process

and virtually exhibit to the public. In addition, the

law of copyright clearly illustrate that a work is

entitled for copyright protection regardless of the

quality because what matter the most is the

originality of the work (United States Copyright

Office Transcript of Orphan Works, 2015; Section 7

(3) (a) Copyright Act 1987). Visual artist argued

that, most of the image that they published online

without attribution attached to the image (Khaw, L.

K.,2001). Most of the website or search engine

provides no credit or attribution whatsoever.

Multiplying the problem exponentially is the fact

that, according to industry service providers, as

much as 90 percent of the visual images appearing

on the web are posted and shared without

authorization or knowledge of the copyright owner

(Khaw, L. K.,2001). In such situation, it is hard for

the users to trace the origin of the author or owner

and sometimes even if the author had protected their

work with watermark, but it can be easily

circumvented.

4 LEGAL POSITION OF

ORPHAN WORKS IN

MALAYSIA

Rapid advancement made in the world of

information and communication technology, have

allowed institutions such as library, museum,

achieve or broadcasting station to modernize their

service to the users. Access to information can be

obtained easily and at any time by the users. Due to

this and many other advantages afforded by the

modernization digitization project has become a

common activity among the academic libraries in

Malaysia. There are 22 academic libraries and the

Library of Malaysia that has embarked on

digitization activity (Mohd, A., 2005). However,

there is no empirical data on the scale of material

that could not be subjected to digitization due to

status of such works as orphan since there is no

iN-LAC 2018 - International Law Conference 2018

official study have yet to be conducted in

determining the volume of orphan works in

Malaysia (Nor Akhmal Hasmin & Nurul Jannah

Mustapha Khan, 2015).

Furthermore, copyright awareness in Malaysia is

still at an infancy level as compare to the western

part of the globe such as European countries and the

United States. Malaysian government is not actively

and effectively promoting awareness of the

Ponnusamy, V., & Lee, K. M. 2007). Even though

for the would-be user to exploit orphan works, but it

is still not adequate as the Act do not directly

address the matters regarding orphan works unlike

other jurisdictions.

Theoretically, there are few provisions under the

users to utilize orphan works for the purpose of mass

digitization. First, the would-be user can rely on the

provision of fair dealing under section 13 (2). The

would-be users need to ensure that the usage of the

orphan work fall within the exception of copyright

infringement. According to section 13 (2A) there are

four factors that need to consider before the use of

copyrighted works is regarded as fair dealing, this is

also known as four stages test. The would-be user

needs to identify whether the use is for commercial

nature and non-profit educational purposes, the

nature of copyright law, the amount and

substantiality of the portion use, and lastly the effect

of the dealing to the potential market or value of the

copyrighted works. Furthermore, section 13 (2) also

list out in details the types of activities that falls

within the scope of fair dealing namely non-profit

research, private study, criticism, review or reporting

current events. If the institutions like libraries,

museums or archives, uses the orphan works for

research or educational purpose, then the fair dealing

doctrine can be made applicable. Thus, the relevant

institutions can continue with digitization activity

even without the consent of the owner.

Unfortunately, certain digital libraries or

museums will impose admission fee or patron need

to pay certain amount of money before they can gain

access to the digitize information. For virtual

museums for instance, admission fee is somehow

could not be avoided because the creation of virtual

museum itself is costly though it does not require

physical building. When digitization is a profit

driven activity or for commercial matter, fair dealing

exception is not applicable as provided under section

13 (2A). Since the use of copyrighted works is

outside the scope of fair dealing, consent or

permission from the author or legal representatives

must be obtained.

Second, Section 26 (4) provides for presumption

of ownership where consent to use the copyrighted

works can be obtained from legal representatives of

the author. If the work is published under

anonymous and pseudonymous work, the publisher

whose name is indicated in the work shall be

considered as the legal representative of such work

and shall be entitled to exercise and protect the

rights belonging to the author (Section 26 (4) (b)).

Hence, consent could be obtained from the legal

representative of the anonymous and pseudonymous

author. This provision is well and good if the legal

representative of the copyrighted work is known.

The underlying problem is when the owner is

unknown for example when the publisher is a

company that no longer exists or had undergone

liquidation (Castle, C. L. & Mitchellright A. E.,

2009). The would-be users will then find themselves

in a difficult predicament and dilemma as to how to

search and locate the rightful author in order to seek

the required permission.

Finally, in relation to the unpublished work,

where the identity of the author is unknown, the

would-be user may obtain permission from the

Minister of Tourism and Culture, Malaysia as

provided under Section 26 (4) (c). This is clearly

stipulated in the legislation that for unpublished

work the copyright shall be deemed to be vested

upon the Minister in charged with the responsibility

for culture. However, it is contended that to invoke

the provision itself is easier said than done. This is

because consent must be obtained from the minister

himself and the procedure on how to apply is not

enumerated under the Act. In addition, matters that

should be taken into consideration by the minister in

granting consent are not specified in the Copyright

Act 1987. If the minister just simply granted the

permission without a proper justification, it could

jeopardize the right of the author and owner of the

copyrighted works. This is because when discussing

about protection of orphan works the purpose is to

balance up the creation of the rightful owner and the

use of the work itself (Band, J., 2015).

Therefore, there is a gap in the Copyright Act

1987 with regard to the right of using orphan works

when the legislation fails to facilitate the digitization

activity and no sufficient legal protection provided

towards the would-be user of the orphan works.

Since the provisions in the Copyright Act is deemed

to be insufficient to encourage mass digitization

activity, reference can be made to current legal

Mass Digitization of Copyrighted Works: Harmonizing the Orphan Work Solution in Malaysia

position in European Union and United Kingdom as

a benchmarking and lesson to be learnt.

5 LEGAL POSITION OF

ORPHAN WORKS IN

EUROPEAN UNION AND

UNITED KINGDOM

For the purpose of this research paper, the law

pertaining to orphan works in the European Union

and United Kingdom is chosen as a benchmark for

comparative analysis. The selection is made based

on the ground that these two jurisdictions has a

specific provision on orphan works under their

respective copyright laws. The law in both

jurisdictions provides instances where it is permitted

to use orphan work and the provision were drafted in

detail as to avoid any ambiguity. Besides that, the

issue of orphan works in these jurisdictions is much

more serious as compared to Malaysia based the

massive volume of works.

5.1 The European Union

The legal position in the European Union is differs

when compared with Malaysia. The European

Commission have issued a directive on certain

permitted uses of orphan works. This is the most

comprehensive effort by European Commission

under the European Observatory on Infringement of

Intellectual Property Rights to overcome the

problem of orphan works. After series of reviews

conducted, the European Parliament passed

Directive 2012/28/EU (hereinafter refers to as the

Directive) on 25 October 2012. The main objective

of the Directive is to provide a legal framework to

facilitate the dissemination of orphan works which

are protected by copyright or other related right for

which the rightful owner cannot be identified and

located, which make the usage of orphan works

possible (Article 1 (1) Directive 2012/28/EU). The

Directive also works as a solution to address the

issue of mass digitisation of orphan works in the

internet (Recital 4 of the Directive 2012/28/EU) and

also to enhance European Union competitiveness in

realisation of European digital libraries and key

actions of the Digital Agenda in Europe (Rosati,

E.,2013). The Directive is directed towards

institutions such as public libraries, education

establishments, museums and archives, educational

establishments, film heritage and public service

broadcasting organizations in the pursuance of their

public interest missions and for non-profit purposes

(Article 1 (1) Directive 2012/28/EU).

The Directive laid down the legal requirement

that need to satisfy before the would-be user could

utilize the orphan works. According to Article 3 (1),

any institution wishing to use an orphan work must

first carry out a diligent search in good faith by

consulting appropriate sources prior to the use of the

work. The Directive also lists down the relevant

sources which diligent search could have been

conducted as stated in Annex (1) (2) (3) and (4). But

the list is not exhaustive, and the would-be user can

use other possible means to locate and identify the

owner. The search is conducted for the purpose of

ascertaining the status of the work and once the

work is affirmed as orphan then it is deemed to be

orphan throughout Europe (Rosati, E., 2013). After a

diligent search has been conducted, the whereabout

or identity of the owner is remained unknown then

the would-be user can use the works without being

liable for infringement.

Besides Directive 2012/28/EU, the European

Commission also had issued the Commission

Recommendation on the digitisation and online

accessibility of cultural material and digital

preservation (2011/711/EU) to the member countries

as a guideline for museum digitisation agenda in

Europe. Among the recommendation made is to

have a proper licensing mechanism if the collection

is a copyrighted works (collective licensing

management) (European Commission, 2016). These

legal frameworks could be a document that provides

statutory consent that diminished the liability of the

would-be users for copyright infringement in the

European Union.

However, there is a criticism directed towards

the Directive and contended that it is not

comprehensive enough to overcome the orphan

work issue in mass digitization. The main reason is,

the Directive focuses on the digitization by libraries,

educational establishments and museums, as well as

archives, film or audio heritage institutions and

public-service broadcasting organisations for non-

commercial purpose to encourage preservation and

dissemination of European cultural heritage, as

stated under Preamble 1 and 18 of the Directive. But

again, this paper emphasizes that, some of the

digitization project is profit oriented for instance

digitization by museum or broadcasting institutions.

Therefore, it does not resolve the issue where the

usage is intended for commercial purpose and

private interest. Although there are some setbacks in

the Directive but at least there has been an effort

taken to protect orphan work but at the same time to

iN-LAC 2018 - International Law Conference 2018

promote mass digitization of orphan works in

European Union.



5.2 United Kingdom

In United Kingdom, efforts to overcome the issue of

orphan works started even before the European

Parliament issue the Directive 2012/28/EU. The

government of United Kingdom perceived the

uncertainty surrounding the orphan works not only

detrimental to the domestic copyright policy, but it

will affect the economy because protection of

maintaining its status as world economic power

(Bunce, A., 2013). In 2006, a report was

commissioned by the United Kingdom’s Chancellor

of the Exchequer to identify whether the intellectual

property laws in United Kingdom was well

positioned in an era of globalization and technology,

which included an analysis of the orphan works

situation (Gowers A., 2006). The report proposed to

the government for solution to the orphan works

situation, however legislative action to overcome the

issue of orphan works was implemented a few years

after the report was published (Bunce, A., 2013).

On April 25, 2013, the EU Directive on orphan

work was transposed into the United Kingdom law

by passing orphan works legislation as part of its

omnibus Enterprise and Regulatory Reform Act

2013, which resulted in United Kingdom Copyright,

Design and Patent Act 1988 (CDPA) to provide a

licensing scheme for orphan works. Section 44B and

section 76A was inserted into CDPA to permit the

use of orphan works in United Kingdom. Schedule

ZA1 of CDPA inter alia states that, public library,

educational establishment, museum or archive

institution does not infringe the copyright in relevant

work in its collection which is an orphan work by

reproducing the orphan work for the purpose of

digitization making available, indexing, cataloguing,

preservation or restoration.



However, before the would-be user can digitize

the orphan works, user must prove that the relevant

work is an orphan work and for the matter, diligent

search must be carried out in good faith in respect of

the work by consulting the appropriate sources

(Rules 5 (1) and (2) Schedule ZA1 of the CDPA).

The would-be user must first provide evidence that

diligent search has been done to locate the right

holders and declare the use that the applicant

proposes to make of the orphan works. Part 2 of the

same schedule provide a comprehensive list for

sources to be searched during the diligent search and

the list is divided according to the category of work.

This list is in fact a useful guideline for the would-be

user in conducting diligent search. If the authorizing

body satisfied with the search result and the status of

work is orphan, then nonexclusive license will be

issued, and it is valid for 7 years (Section 4 (5) of the

CDPA). If in any event, the right holders of the

orphan works identify themselves, and license is yet

to be granted, then the work will cease to be an

orphan work. However, if license has been granted,

the orphan license shall continue until the expiration

of the term stated on the license. The licensing of

orphan works will be carried out by Intellectual

Property Office (IPO) UK and the online system to

license orphan works was launched on 29th October

2014.

6 FINDINGS AND

RECOMMENDATIONS

In Malaysia, there is no formal study conducted to

examine the issue of orphan work thus no empirical

evidence is available on the severity of this problem.

But it is believed that, the issue of orphan work in

Malaysia is as serious as in other countries. Another

reason why this legal issue needs to be addressed is

the main legislation governing copyright law in

on orphan works. Even though, would-be user may

rely on exceptions such as fair dealings, presumption

of ownership and obtaining permission from the

Minister of Tourism and Culture Malaysia for

unpublished work, these three provisions have its

own limitation in term application and enforcement

where users will still be subjected to action for

infringement of copyright.

As for the owner of the orphan work, they are

entitled to initiate infringement suit toward the

infringers as their rights are guaranteed under the

digitization, sharing and posting a file on the internet

is something that is beyond owner’s control.

Sometimes the identity of the infringer is unknown

due to anonymity of the internet thus make hard for

the owner to identify the infringer and to initiate

infringement proceeding. Furthermore, under the

current copyright regime, owners are entitled for

automatic rights and protections upon the

completion of the work. Article 5 (2) of the Berne

Convention clearly forbids any formalities in

system, it leads to less accurate and incomplete

identifying information on works which calls for

orphan work status.

Mass Digitization of Copyrighted Works: Harmonizing the Orphan Work Solution in Malaysia

Therefore, it is suggested that steps should be

taken by the relevant authorities such as Malaysia

Intellectual Property Office (MyIPO) to properly

address the issue of orphan works specifically in

providing solution to the relevant institutions to

embarked on mass digitization project which may

include orphan works. For this purpose, amendment

allows for uses of orphan works must be included.

Although, the European Union Directive

2012/28/EU and CDPA is not impeccable legislation

on orphan works, but it could be a good guiding

principle for our country to regulate on orphan

works as a legal strategy to reduce risks for open

access of copyrighted works through digitization. It

is also suggested that, formal scientific or empirical

study need to be conducted to identify the volume of

orphan works in Malaysia especially in public

library, archive and museum. Hopefully this

dilemma could be ended so that it can eliminate

barriers to the use of orphan works and encourage

dissemination of information via digital platform so

that it could increase public accessibility toward the

orphan works.

7 CONCLUSION

Overall, the issue of orphan work under the

for legislative solution. Malaysia may start by

addressing the orphan works that will be used by

museum or public libraries and limited to work of art

or works that significant to social or historical

importance. This problem is worth solving because

as long as it remains unsolved, a significant fraction

of our culture will be hidden or suppressed.

Furthermore, orphan work is as much as valuable as

non-orphan work and should be made available to

new generations.

ACKNOWLEDGEMENTS

This research is financially supported by the Faculty

of Law Universiti Teknologi MARA.

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