This document discusses the issue of digitizing "orphan works", which are works where the copyright holder cannot be identified or located. Digitizing these works for online access could constitute copyright infringement. While increasing access through digitization is important, archives are wary of infringement lawsuits. The document proposes that archives should be more aggressive about digitizing orphan works, while also advocating for legislation that allows digitization if reasonable efforts were made to identify the rights holder, with limited penalties if the rights holder emerges. A previous legislative attempt included these provisions but failed to pass.

1. Digitizing Orphan Works
An Archival Dilemma

2. 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.

3. 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.

4. 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.

5. 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.

6. 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

7. 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.

8. 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.