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The Problem of Orphan Works and Mass Digitization: The Copyright Office Seeks Input

The Copyright Office has today, October 22, 2012, published a Notice of Inquiry on the subject of orphan works and mass digitization.  The Office is reviewing the problem of orphan works under current U.S. copyright law in order to advise Congress as to what has changed in the legal and business environments and what additional legislative, regulatory, or voluntary solutions are necessary.

An “orphan work” is an original work of authorship for which a good faith, prospective user cannot readily identify and/or locate the copyright owner in a situation where permission from owner is necessary. (For further information, see the U.S. Copyright Office, Report on Orphan Works (2006) at: http://www.copyright.gov/orphan/orphan-report.pdf.)

As the higher education community knows, orphan works can be a frustrating problem with which to deal and they pose a liability risk.  In this current digital environment, a productive and beneficial use of a copyrighted work may be curtailed because the user cannot identify and/or locate the owner and therefore cannot determine whether, or under what conditions, the work may be used. Also, works that might otherwise be available for use in research and education are often restricted.  In short, this current nebulous state is at odds with the overall goals of the copyright system.

This is a problem that is not limited to the U.S.  The European Commission has adopted measures that would begin to resolve the issue in certain contexts and a number of foreign governments are reviewing their laws or proposing solutions.

Here in the U.S., the orphan works problem was exacerbated by a series of changes in copyright law and technological developments over the past thirty-plus years.  Recent court cases have raised additional questions regarding orphan works, particularly in the context of mass digitization (i.e., HathiTrust and the Google Books Search initiatives).  

Of particular interest to the EDUCAUSE community, the Copyright Office is seeking comment on “potential orphan works solutions in the context of mass digitization.  How should mass digitization be defined, what are the goals and what, therefore, is an appropriate legal framework that is fair to authors and copyright owners as well as good faith users?  What other possible solutions for mass digitization projects should be considered? "  Comments are due by January 4, 2013.

As the Copyright Office has noted, there are a number of key legal and policy questions to explore when assessing mass digitization, including the objectives and public policy goals of mass digitization projects, the interplay among library exceptions, fair use, and licensing, and the ability of public and private actors to work together.  EDUCAUSE is beginning discussions with other higher education associations to work in coalition on this important issue.  We will keep you apprised of developments and progress.

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