A Guide to the Orphan Works Problem
A. My Interest in Orphan Works
My previous career and interest in digital media and entertainment has prompted me to study the problem of orphan works this semester and help propose legislation with the Samuelson Law, Technology & Public Policy Clinic in response to the Copyright Office's January 26, 2005 Notice of Inquiry. Orphan works is defined as copyrighted works whose owners are difficult or impossible to locate, meaning they can no longer be purchased, reprinted, cited at length, or otherwise built upon. Because the copyright system contains no mechanisms to create and maintain useful records of copyright ownership, people who would like to distribute or use orphaned works often are unable to clear rights. It has always seemed a strange contradiction to me that although the primary purpose of copyright law is to encourage the production of original literary, artistic, and musical expression for the good of the public, it needlessly discourages subsequent creators from incorporating such works in new creative efforts or making such works available to the public.
Orphan works will likely be a hot issue in the coming years. Next year, the Copyright Office plans to host hearings on the issue, and anticipates a bill being introduced in Congress.
To get an idea of what is an orphan work, here are a few examples:
Museum of Modern Art contains 13,000 films, more than half of which are orphan works unavailable to the public. Report of the Librarian of Congress, Film Preservation 1993: A Study of the Current State of American Film Preservation, 5 (1993).
A librarian at the University of Texas at Austin, says the problem of "orphan works" has been a real impediment for the creation of web-based resources. For one of his current projects, involving the digitization of selected papers of a U.S. Supreme Court justice, he wanted to use an image from a newspaper from 1960. The newspaper, however, went out of business in 1963 and this made it impossible to determine where he would go to secure permission to use the image.
Cornell Center for Labor Management Relations has 350,000 unpublished photographs, but only 1% of them have any indication of the photographer.
The performing arts section of the Library of Congress has great difficulty clearing the rights for old music scores. in many cases, the publishers are no longer in business and the rights cannot be traced. The photocopy service at the Library refuses to reproduce the scores in the absence of written permission from the copyright holder. For more examples see the Library Copyright Alliance Comment 658.
B. Purpose of this Pathfinder
The goal of this pathfinder is to inform copyright owners, users, administrators, and lawmakers of the legal and policy issues at stake. The site can be used as a general introduction or to research legal topics in more depth. I have provided examples and information of organizations and entities affected by the problem, policy research and rationale, legislative materials, and links to various databases on the web. Judging from the large number of comments (over 700) filed in response to the Copyright Office’s Notice of Inquiry detail, orphan works is a problem for many different types of users, ranging from libraries and archives, musicians and filmmakers, to software engineers. The resources listed in the pathfinder will help clarify and inform copyright owners, users, administrators, and lawmakers of the legal and policy issues at stake. This pathfinder is written for people with little understanding of the way copyright law works, but with an incentive to learn. Since there is so much embodied in the scope of Orphan works, this pathfinder cannot be totally comprehensive, but it is an effective research tool to begin the process.
C. How to Use
In order to create this pathfinder, I had to engage in additional research myself. Since this topic is a fairly recent development and constantly changing, Internet search engines like Google proved to be a valuable resource. I have included some excellent starting points to review as an introduction to orphan works. With many sections of the pathfinder, I include a "Research on your own" section which points you toward other databases and websites that will help you to better understand and answer your questions.
Research on your own:
Federal Register Copyright Notice: For an excellent starting point, read the "background" section of the Copyright Notice in the Federal Register, which provides useful footnotes with relevant resources. Notice of Inquiry, 70 Fed. Reg. 3739 (Jan. 26, 2005) available at http://www.copyright.gov/fedreg/2005/70fr3739.html Comments and replies are posted on the Copyright Office website.
Kahle v. Ashcroft is a lawsuit that challenges changes to U.S. copyright law that have created a large class of "orphan works." Stanford Law School for Internet and Society has completed a detailed website about the case with links to the briefs filed.