On March 10 and 11, the United States Copyright Office held roundtables on mass digitization and orphan works—books, photographs, works of art, and other intellectual property for which the rights holder cannot be found. Debate on the question of the legal standing of reproductions of orphan works and their copyright status has been ongoing for almost a decade. As early as 2006, a Copyright Office report made the extent of the problem clear and proposed draft language for legislation. Bills were introduced to Congress in 2006 and 2008 that aimed to address the issue of orphan works, but to date no legislation has been passed.

Valuable primary sources, images, and published works for which the copyright owner cannot be determined or found pose problems for institutions that want to provide the access that historians and other researchers need, and for individual scholars who want to use an orphan work as source material in their own publications. In the case of works such as these, cultural resources can be underutilized if legal restrictions on orphan works ­constrain digitization and online access. Opening up access can also provide means for finding rights holders and discovering the provenance of unattributed items, a valuable endeavor for historians and owners alike.

While it’s difficult to estimate the scale of the problem, it is clear that access to orphan works is a major concern affecting the reproduction of millions of works worldwide. Of the approximately 2 million books published in the US between 1920 and 2000 approximately 30 percent are potentially orphan works. The British Library estimates that as much as 40 percent of its entire collection (including a variety of media) is orphan works. The problem is particularly acute with photographs. In the case of unpublished images held in museum, library, and archive collections, fewer than 1 percent are accompanied by information on the rights holder.¹

The roundtables in March were the most recent in a series of public events to gather information and allow various interested parties to comment in a bid to move toward a solution that would break the longstanding deadlock on the issue. Attendees at the roundtable included content guilds, such as the Authors Guild, which advocate for rights holders. The content guilds tend to argue for stricter regulation, which they argue protects their members from “widespread digital theft.”² The other side of the argument is provided by advocates of libraries, other nonprofit organizations, and digital libraries like HathiTrust that see the current restrictions as stifling use of these valuable cultural works and argue for the public benefit of strengthened “fair use.” The College Art Association, the learned society for art historians (for whom copyright restrictions can be a significant barrier to scholarship), has argued that legislation should “provide a safe harbor for not-for-profit cultural institutions, engaged in non-commercial activities, that had exercised . . . care and that took steps to cease the infringement.”³

While orphan works existed before the web, the problem has become acute due to mass digitization by Google Books and smaller-scale operations by cultural institutions. So it is no surprise that this issue is closely related to the questions addressed in the case Authors Guild v. Google, which was decided in November and is now being appealed. The judge’s ruling repeatedly invoked the question of what constitutes fair use, which is of direct relevance to historians and scholarship, to support his case that mass digitization is a public benefit.

Thus, any future legislation on orphan works that limits the fair use of material for scholarly purposes has the potential to interfere with the work done by researchers, for whom many of these works are potentially primary source material. Since copyright infringement can result in significant damages, nonprofit cultural organizations can ill afford to take risks of this kind. Unfortunately, the issue pits authors and their representatives against the librarians with whom they should be allies, and the debate is often emotive and polarized. The Copyright Office had an open period during which they accepted written comments on the issues covered at the roundtables with a view to considering potential legislative solutions, so progress on this issue may be possible.

Seth Denbo is the AHA’s director of scholarly communication and digital initiatives.

Notes

1. Michael Cairns, “580,388 Orphan Works—Give or Take,” Personanondata, posted September 9, 2009, accessed April 4, 2014, bit.ly/OhNeuw. Tilman Leuder, “The ‘Orphan Works’ Challenge” (paper presented at the 2010 Fordham IP Conference), accessed March 30, 2014, bit.ly/1i2clJP (PDF).

2. “Authors’ Orphan Works Reply: The Libraries and Google Have No Right to ‘Roll the Dice with the World’s Literary Property’,” Authors Guild Blog, posted June 25, 2013, accessed March 31, 2014, bit.ly/1i2cygb.

3. “CAA Participates in Roundtables on ‘Orphan Works and Mass Digitization’,” College Art Association News, posted March 26, 2014. accessed March 31, 2014, bit.ly/1i2cD3v.

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