Public good theory: a theoretical justification for permissive licence to use and re-use orphan works

Abstract

This paper explored the adoption of Paul Samuelson’s Public Good Theory as a theoretical justifcation for a permissive licencing scheme that enables the use and re-use of orphan works in Malaysia. Orphan works are copyright-protected works with unlocatable or unidentifed right holders, and are currently on the rise due to the proliferation of unregistered, anonymous, and abandoned copyrighted works. The literature denotes the challenges arising from the diffculty faced by potential users in obtaining the permission for creative and innovative use of orphan works as required under the copyright law. Such challenges impede the potential use and re-use of orphan works for the purpose of knowledge dissemination, progress in the arts, preservation, and digitisation activities. This paper contributes to the current body of knowledge by canvassing two important issues. The frst issue focused on the challenges faced by potential users to use and re-use orphan works in Malaysia. The second was Paul Samuelson’s Public Good Theory as a theoretical justifcation for permissive licence to use and re-use orphan works. It is anticipated that a legislative reform grounded on Paul Samuelson’s Public Good Theory will spur grassroots innovations, creativity, and entrepreneurialism among members of the public. The permissive licencing scheme supports global calls for legislative reform of the copyright law to facilitate the use and re-use of orphan works.