Digital libraries and silent works

The natural destiny of a work is the public. Works embody a discourse to be transmitted to the public. But there are some situations where copyrighted works are obliged to remain in silence. So when it is impossible to identify the rightholder or, if identifiable, it is impossible to locate her. Without the possibility of getting her permission, the so-called orphan works can be neither reproduced nor communicated to the public. Therefore their role in the public sphere is severely mutilated. But this is not the sole situation in which Copyright Law forces the works to be in captivity. Such a silence comes out again in relation to out of print works, to those works that are out of the market. These creations, sterile from a commercial point of view, become also sterile from the cultural one. Captivity appears over again in the case of other abandoning situations, for example when rightholders do not reply to the request of potential users. The more paradigmatic (and problematic) situation is that related to unpublished items, works that, in most cases, have not even been intended to be a work and then to contribute to the public sphere.
Digital libraries have a key role in preserving the voice of copyrighted works. In the cases mentioned above, the copyrights (and sometimes not only the copyrights) impose a mandatory silence justified on the exclusive rights, on the autonomy of will. It cuts short preservation and access to DL projects and increases the risk of a black cultural hole. But the fact is that we do not know about the will of the author, nor her heirs or other rightholders. Then, is this mandatory silence in coherence with the social function of our legal systems? Silent works do not provide any benefit to the author, neither to the society. How should react the legislator as far as this empty space, neither private nor public, is concerned? Some countries are already discussing partial solutions to face this problem. Are they enough? To take profit of the possibilities that technology gives us to liberate these works, to put their muzzles off, to incorporate them in the public sphere may require, once more, a reflection exercise about the fundaments of the copyright systems and about the best shape of our Copyright Law. It goes without saying that Digital Libraries may help in this liberation process, to what extent will depend not only on the will of the authors but on the will of our international and national policy makers.
This paper intends to be a first attempt of a copyright silence roadmap and to briefly describe the different measures that have been proposed to tackle this problem and, as far as possible, to restore the voice of silent works.