ORPHAN WORKS

It’s Not Just Academic

WHAT IS AN ORPHAN WORK?

Orphan works are works whose copyright holders cannot be identified or found – and are not made publicly available by libraries for fear that rights holders will come forward, initiate legal action, and demand statutory damages of up to $150,000 a work.

 

American Library Association

A QUICK HISTORY OF COPYRIGHT

Copyright Act of 1790 – 14 years w/14 year renewal.

1831 – 28 years with no renewal.

1909 – 28 year term was granted a renewal bringing the total to 56 years

1976 – Registration and renewal were eliminated and copyright became the lifespan of the author plus 50 years.

1998 – Sonny Bono Copyright Term Extension Act extended copyright term to lifespan plus 70 years.

Digital Millennium Copyright Act (DCMA) – Makes it a federal crime to circumvent encoding schemes.

GOOGLE BOOK PROJECT 2002 – Google Announces “Secret Books

Project” to digitize millions of books.

2004 – Google teams up with NYPL, University of Michigan, Harvard & other prestigious libraries to begin process.

2005 – Authors Guild of America & The Association of American Publishers file a lawsuit against Google claiming massive copyright infringement.

GOOGLE BOOK PROJECT 2006 – A bill is proposed that would limit

liability if orphan works are infringed upon but it does not pass.

2008 The Orphan Works Act of 2007 passes the Senate but not the House.

2009 – In November both parties amend the agreement to include among other things a fiduciary to hold payments due to orphan works. If the rightsholder is never ascertained, the funds are distributed cy-pres instead of redistributed among rightsholders.

GOOGLE BOOK PROJECT

2011 – On March 22 the amended agreement is rejected and everyone goes back to the drawing board.

November 14, 2013 – The suit is dismissed leaving orphan works basically right back where they were before…in the purview of “fair use” and anxiety…or are they?

WHY ARE ORPHAN WORKS A PROBLEM?

While orphan works are by their nature difficult to

count, a recent study suggests that as much as 55% of all the books in research library collections are likely to be orphans. The study’s author, HathiTrust executive director John Wilkin, argues that more than half of the works in research library collections are likely to be orphan works, with the remaining portion split between works in the public domain and non orphaned copyrighted works.

Resource Packet on Orphan Works: Legal and Policy Issues for

Research Libraries.

STAKEHOLDERS

Libraries Museums Archives Educational Institutions Movie Producers Educators And anyone who would like to build on

the expressive works of the past.

THEY CRIPPLE RESEARCH Libraries and archives are unable to

digitize their collections.

Risk-averse institutions will not make collections available thereby failing to fulfill part of their core mission.

Even with the doctrine of “fair-use” many librarians have taken the risk-averse position.

RECENT ORPHAN WORKS VICTIMS

THEY STIFLE CREATIVITY They don’t allow for derivative works.

Unable to create in-person displays or exhibits.

Often unable to perform musical or artistic works.

Unable to display artwork in collections of similar works.

WHY ARE WORKS “ORPHANED” The death of an author. The loss of the publisher of the work. The work originated with an

organization that no longer exists. The work was created through

collaboration and often was prepared in an employment context.

Copyright was sold and either the assignee entity no longer exists or the chain of the title can no longer be traced.

OTHER THINGS TO CONSIDER

How likely is the author/creator of a work to sue over an orphan work?

If an work is successful then most likely the author has kept track of the rights from the beginning.

Most orphan works can be digitized after a “diligent” effort is made to find the copyright owner.

DILIGENT EFFORT? Moreover, the resources, techniques

and technologies used to investigate the status of a work also differ among industry sectors and change over time, making it hard to specify the steps a user must take with any particularity.

Report on Orphan Works – 2006 – Pg. 9

RECOMMENDATIONS Public Knowledge

http://www.publicknowledge.org/issues/ow

Columbia Copyright Advisory Office http://copyright.columbia.edu/copyright/permissions/if-you-cannot-find-the-owner/

What Constitutes a Diligent Search Under Present and Proposed Orphan Work Regimes? Social Science Research Network http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2229021