Orphan works are copyrighted works with rightsholders who are difficult or impossible to identify or to contact. Orphan works can either be published or unpublished works. Rightsholders may be unknown because of lack of documentation at the time of creation (think of many mid-20th century photographs), because the original rightsholder died and heirs are unknown, or because a publisher went out of business and the issue of rights owned by that business is unclear. There are many such reasons, but the ultimate result is that it's usually not possible to get permission to use orphan works.
See Getting Permission for more information on finding rightsholders.
Libraries, museums and archives are carrying out small, medium and massive digitization projects and providing public access to the resulting digital collections. Google, Amazon, Yahoo, and Microsoft, among others, are partnering with cultural institutions to increase the pace at which these collections are brought to the public. Foundations are providing needed financial support as well. These projects now number in the millions!
Mass digitization has facilitated growing recognition that a policy of overprotection is just as destructive to copyright's aims as one of underprotection. The balance between the two is not static. It changes with the times. We need to change it now. That said, legislative change in most countries is glacial. This forces work-arounds. So what are our work-arounds for the gross mistake of creating copyright terms that can last well over a century?
First, we are developing better tools to identify those works that actually are in the public domain. The University of Michigan, in partnership with the HathiTrust Digital Library, have reviewed hundreds of thousands of books to help determine copyright status. Because of their efforts there are thousands and thousands of books that we now know are in the public domain and free to use without restrictions. The New York Public Library is working on a project to digitize and transcribe the renewal records from the Copyright Office. This will help us identify even more works that are likely in the public domain.
Second, we are working with other libraries to begin developing best practices to define reasonable searches for copyright owners of different types of works. Much has been written on the subject of orphan works (works that are likely still protected by copyright, but have no identifiable copyright owner) and what we should do to improve access to them, but the sad fact is that without courage on the parts of collection owners, most orphan works will remain outside the digital environment. Because by definition they often lack sufficient information to identify their owners, identifying the date on which they would otherwise enter the public domain is also impossible. Even where that date can be determined, it is often a long, long time away. Yet using these works as building blocks for other works would not be opposed in most cases either -- but there's no one to ask. Sound like an easy case for going forward with at least nonprofit uses, but there is something in the other side of the balance: copyright's draconian penalties for infringement. If it turns out a cultural institution was in error in determining that a work was an orphan and the owner turns up and desires to enforce their rights, the Copyright Act provides so much deterrent and punishment power that most nonprofits have just said, "no thanks," to making the public aware of these works.
But exceptions are beginning to show up. The problem of orphan works and determining exactly when a work enters the public domain are closely related. Often we think a work must be so old that it's bound to be public domain, but we can't be certain. Searching for the owner and not finding one helps to reduce the sense that one is risking a lot by digitizing and displaying such a work. And, indeed, in these situations and many others, libraries are beginning to take a chance that with a reasonable search, they can reduce the risk to an acceptable level and display the work with a special notice that advises the public that its appearance on the website is not a guarantee that it can be used for any purpose. At least it is displayed. Others can weigh and balance their own risks, given the goals of their projects. In this way, little by little, the public domain and the orphan works find their way into the light of day.
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