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It’s Not Just Academic
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
 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.
 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.
 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.
 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?
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.
 Libraries
 Museums
 Archives
 Educational Institutions
 Movie Producers
 Educators
 And anyone who would like to build on the
expressive works of the past.
 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.
 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.
 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.
 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.
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
 Public Knowledge
http://www.publicknowledge.org/issues/ow
 Columbia Copyright Advisory Office
http://copyright.columbia.edu/copyright/pe
rmissions/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?abs
tract_id=2229021

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Orphan works

  • 1. It’s Not Just Academic
  • 2. 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
  • 3.  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.
  • 4.  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.
  • 5.  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.
  • 6.  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?
  • 7. 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.
  • 8.  Libraries  Museums  Archives  Educational Institutions  Movie Producers  Educators  And anyone who would like to build on the expressive works of the past.
  • 9.  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.
  • 10.
  • 11.  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.
  • 12.  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.
  • 13.  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.
  • 14. 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
  • 15.  Public Knowledge http://www.publicknowledge.org/issues/ow  Columbia Copyright Advisory Office http://copyright.columbia.edu/copyright/pe rmissions/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?abs tract_id=2229021