Saving Orphans: Copyright Office Proposes a Solution
Robert B. Townsend, March 2006
In a report that could be quite significant for historians, particularly those who work on the history of the 20th century, the U.S. Copyright Office proposed a legislative remedy for the orphan works problem in late January.
"Orphan works" refer to copyrighted images, documents, or songs whose rights-owning "parents" cannot be found. They present a particular problem for historians who want to use an orphaned image or text to support an argument in an article or book. Given the economics of history publishing, editors and publishers generally prefer to exclude such material, fearing expensive legal battles and penalties in the event a litigious owner surfaces to make a claim.
Equally important, the ambiguities caused by orphan works create roadblocks to preservation, making it more likely that portions of the historical record will disappear. Projects to digitize and post portions of library and archive collections, to make them available online and for posterity, are often stymied by the high costs involved in trying to determine provenance. So instead of entering into the public domain, documents molder and pictures are often left sitting in a drawer, slowly fading.
In both cases, the public interests of scholarship and preservation are ill-served by the ambiguity on this question. But of course, historians have a contrary interest as well. As authors of articles and books, very few historians want to see their progeny carried away and put to use for someone else's economic benefit. So in comments to the Copyright Office last March, the AHA urged it to develop a balanced solution to this issue, one that would address both the interests of historians as researchers and scholars, and their interests as creators of copyrighted work.
The legislative remedy proposed by the Copyright Office satisfies many of these concerns by defining the conditions for using orphan works and limiting the risks of such use. Under the current proposal, anyone who wants to use an orphan work would first have to conduct a "reasonably diligent search" in "good faith" for the copyright holder. Unfortunately, the legislation does not specify what such a search might entail. The Copyright Office argues that such ambiguity "is needed because of the wide variety of works and uses identified as being potentially subject to the orphan works issues, from an untitled photograph to an old magazine advertisement to an out-of-print novel to an antique postcard to an obsolete computer program. Each of these presents different challenges in trying to find a copyright owner, and what is reasonable in one circumstance will be unreasonable in another."
The report suggests that the ambiguities in the legislation can be reduced if organizations such as the AHA develop "voluntary guidelines" that are more specific to professional and disciplinary standards. If and when this legislation is passed, the Association will certainly pursue this in conjunction with members and other organizations in the field.
The proposed law is intended to make it easier to use some orphaned works. For example, when a copyright-owning parent cannot be found after a reasonable search, historians would be able to use the orphaned work in whole or in part as long as they give proper attribution to the source.
But even in these circumstances, the proposed legislation would not eliminate risks entirely The draft law still characterizes any use of orphaned works as an "infringement" of copyright and the rights owner could resurface at any time to assert a claim.
The proposed legislation seeks, however, to limit the risks. First, it would limit the potential monetary claims the rights holder can make to "reasonable compensation." And for noncommercial uses of the work—posting it for free on the Internet, for instance—the proposal would prevent any monetary claim as long as the use was halted immediately if the rights owner makes a claim.
For most historians the actual use (and the ability to cease use) will not be quite so neat and tidy, as the copyrighted work is often likely to be integrated into a larger book or documentary film. This makes it very difficult to extract without doing real harm to the integrity of the historian's work. In these cases, the proposed legislation offers a separate limitation on the original owner's ability to halt use of the work in its new form, "provided the user pays reasonable compensation."
While the proposal might appear to lower the risks, they still seem quite high, especially for a profession in which the costs of litigation and its uncertain legal fees alone would seem prohibitive. At the very least, the ambiguities in the proposal—inherent in the frequent use of such vague terms as "reasonably diligent search" and "reasonable compensation—may require years of additional court cases to clarify.
Staff at the AHA will continue to track the proposal on Capitol Hill and work with other groups who share our concerns. Readers' comments about the proposal are invited and may be sent to Robert Townsend. The full text of the proposal and additional related material are available on the Copyright Office web site at http://www.copyright.gov/orphan/orphan-report.pdf.
—Robert B. Townsend is AHA assistant director for research and publications.