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Orphan Works and the Possibilities for Expanding the Scope of Research and Education

The topic of orphan works and what to do about them keeps surfacing for discussion in higher education circles.  Why?  Digital libraries containing millions of orphan, out-of-print, and public domain works would vastly expand the scope of research and education.  They would also open up many opportunities for discovery and new knowledge.  Digital copies of such volumes would not only increase access to the works themselves, but would also make academic research available to larger audiences and would go against the tradition of more restricted, and often expensive, access to scholarly work.  Pamela Samuelson, in a Los Angeles Times op-ed, wrote:

“A broad consensus already exists to remove copyright obstacles to orphan works. There is also growing interest in mass digitization of out-of-print works. The arguments for increased access are compelling: These books aren't producing any revenue for copyright owners, and most of them are unlikely to be reprinted. Libraries already own copies of many of them and want to make them available digitally to their communities. And rights holders can always opt out of a library mass-digitization project.”

An interesting symposium recently took place at the Berkeley Center for Law and Technology on orphan works and mass digitization (audio and slides are available for most panels) to wrestle with this complex subject yet again. 

In 2006, the Copyright Office recommended legislation to allow unlicensed reuses of in-copyright works whose rights holders could not be located after a reasonable search in an effort to solve the orphan works problem.  Contributing causes to this problem are a lessening of copyright formalities (such as notice of copyright claims on copies of works and voluntary registration of copyright claims) and extensions of copyright terms.  The European Commission has recently proposed a directive that would also open up greater access to orphan works in the European Union (EU) (See related blog on this topic for further information.).

Although orphan works legislation made some progress in Congress in 2006-2008, its momentum stalled for several reasons, including Google's announcement in 2008 of a settlement of a copyright infringement lawsuit brought by the Authors Guild and a group of publishers over Google's scanning of in-copyright books from the collections of major research libraries for purposes of indexing their contents and providing snippets to search queries.  In the lawsuit, Google argued that scanning books to index their contents and make snippets available online was fair use, not infringement.  Under this proposed settlement, Google would have been entitled to monetize all out-of-print books in its scanned corpus, including orphans, as long as it provided a percentage of the revenues to a new registry whose responsibility would be to track down rights holders so said rights holders could collect revenue for Google's uses of their books

In March 2011, the judge in the case rejected the proposed settlement writing that it was inconsistent with copyright rules that require rights holders give permission before commercial uses are made of their works.  In the judge's opinion, solving the orphan work problem should be done by Congress, not through a class action settlement (See “The Orphan Wars” in EDUCAUSE Review by James Grimmelmann for a review of the convoluted history of the Google Books lawsuit and the complex problem that orphan works present.).

Given the problems surrounding the Google Book settlement and the newly proposed orphan works directive in the EU, the time is ripe for renewed consideration about how best to solve the orphan works problem.  This is what the Berkeley symposium attempted to address.  Among the questions framed in the symposium were:

  • Is legislation necessary to achieve a solution to the orphan works problem, or can fair use achieve some of the goal?
  • Should orphan works legislation be aimed at creating an exception for reuses of orphan works, or should re-users of orphan works only be subject to more limited remedies if a rights holder later shows up?
  • What other solutions should be considered?
  • To what extent is ambiguity about who, as between authors and publishers, owns e-book rights contributing to the orphan work problem?
  • What factors should be considered in determining what constitutes "a diligent search"?
  • Should every potential user of an orphan work have to do such a search, or can users rely on searches conducted by others?

Panelists and keynote speakers offered varying views – from legislative solutions to collective licensing programs to fair use.  Kevin Smith nicely summarizes a fair use argument made by Jennifer Urban, a panelist discussing best approaches to addressing orphan works.  Smith wrote in his blog:

“Perhaps the foundational presentation focusing on a simple approach was from Jennifer Urban, one of the Directors of the Samuelson Law, Technology and Policy Clinic, who simply laid out the argument that use of orphan works most often will be fair use.  Her principal innovation in the fair use analysis was that it should begin, in this case at least, with looking at the second fair use factor, the nature of the original work being used.  ….. Professor Urban’s argument about orphan works focused on the second factor for a similar reason — by starting there we could more clearly focus on the incentives for creation of a particular type of work and understand that there is no incentive to be gained for the creator or publisher of a true orphan work by charging a toll for use.  Indeed, Urban moved from the second to the fourth factor, an easy transition in this argument, and pointed out that an orphan work represents a complete “market failure” in which the economic impact factor clearly favors fair use.  So the simplest solution to the orphan works problem is just to recognize that the tools to facilitate beneficial uses of orphans already exist in U.S. law.”

For further fair use context, see the “New Code of Best Practices in Fair Use” blog; “Fair Use for the Digital Age” blog; and EDUCAUSE Review Policy Matters column by Pat Aufderheide.

On another front, a coalition of libraries and archives has come together to create a Digital Public Library of America to build the next generation library whose worthy goal is to make the cultural and scientific record available to all.  In doing so, the initiative would want to make use of orphan works.  If the project succeeds, higher education would be one of its beneficiaries.  Again Samuelson wrote:

“There are three promising strategies for removing barriers to a universal digital library: First, it should be considered "fair use" in copyright law for nonprofit libraries to circulate orphan works for their patrons for noncommercial purposes. Second, Congress should pass legislation to limit damages and injunctions for other reuses of orphan works. Third, the Copyright Office should explore a collective licensing program under which all in-copyright but out-of-print works could be made available, as some countries are now trying.” 

The question remains --- How long will the orphan wars continue?

EDUCAUSE will continue to monitor and report on this issue.

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