What is an “orphan work?”• Orphan works are those works for which there may be a rights holder, but who is unidentifiable or unlocatable to secure permission to use the item in question.
Why is this an issue for digitization?• Digitization for the web is seen as form of publication, and thus an infringement of copyright.• Because it is an infringement, and because of the punitive cost of infringement suits, most institutions are at best wary about digitizing orphan works for access.
What’s the problem?• Archives, like libraries, are for use.• Digitizing for access is an extremely useful tool, and can increase the social utility of collections in an archive.• While valuing copyright is important, to allow it to dictate how we provide access to researchers and the public in general overvalues it.
What can we do?• Solutions to this problem are two-fold: – Archival institutions should be more aggressive about making orphan works available digitally. – Archival institutions and archivists need to raise the profile of the issue and advocate for a common sense legislative solution.
Be more aggressive? That sounds dangerous…• As noted before, many institutions are not digitizing orphan works at all, due to perceived risks.• To pretend that these infringements carry a 100% probability of litigation does not make sense. What about: – Rights holders who don’t care? – Rights holders who use DMCA take down notices for everything? – Rights holders who won’t even be aware of your use of their work? – Bottom line is we don’t know how many of these types of rights holders are out there, because we’re not doing anything. Being more aggressive does not equal being reckless, or wantonly trampling on copyright
What would legislation look like?• In 2006, legislation was created based on recommendations by the US Copyright Office. It stipulated that: – You may use orphan works as long as a reasonable amount of effort was made to locate the rights holder prior to use. – There would be no highly punitive penalties should a rights holder come forward – only reasonable fees. – Libraries and archives could waive even these if the item was taken down right away.
Conclusion• Archivists should be more open about using orphan works in digitization projects.• At the same time, we should be advocating strongly for common-sense legislative solutions so that fear is no longer our way of living.