Orphaned works are — broadly speaking — any copyrighted works where the rights holder is hard to find. Because the cost of finding the owner is so high, creators can't build on orphan works, even when they'd be willing to pay to use them. In many cases the works were abandoned because they no longer produced any income. In most cases, rights holders, once found, are delighted to have their work used.

Some countries have considered a compulsory license scheme for orphaned works; Canada has enacted one. Some believe that such a scheme, even when applied to foreign works, would pass the Berne three-step test because it is limited to those works that are no longer actively exploited.