New Orphan Works Research from Berkeley Law

By Kenny Whitebloom, February 12, 2013.

Orphan works—i.e., copyrighted works whose owners cannot be located—present some of the most persistently difficult challenges for libraries and archives that seek to digitize and provide digital access to their collections. As many of you know from following the work of the Berkeley Digital Library Copyright Project, orphan works are problematic for libraries because using them without permission can raise the risk of a copyright infringement suit should an owner later emerge and sue. The problem is compounded for libraries in particular because their collections are thought to house many orphans—especially in special collections where materials like diaries, letters, home videos, and personal photographs are unlikely to contain any information about its copyright owner. Berkeley Law’s Pamela Samuelson explains, in an LA Times Op-Ed, that the orphan works problem stands as one of the primary obstacles to true universal digital access through digital library efforts like the Digital Public Library of America (DPLA).

As efforts like the DPLA have advanced, so has interest in developing new solutions to the orphan works problem. The U.S. Copyright Office is now requesting comments about recent developments related to orphan works and mass digitization. The current set of approaches to orphan works include the application of the existing doctrine of fair use to orphan works uses (especially by nonprofit libraries and archives), proposals for legislative amendments that would limit remedies available against users of orphan works, and schemes where licenses are available from a central government authority or from an approved rights management organization.

A common thread among almost all approaches is the requirement that one must search for rightsholders in order to determine whether a work is truly orphaned. While the search requirements can be broken down several ways, the Berkeley team has compared them in more detail in its most recent orphan works white paper by dividing search requirements into three parts: 1) who participates in the search process, 2) what is the nature and extent of that search, and 3) what types of tools or resources must or can searchers look to.

The Berkeley white paper, titled “Orphan Works and the Search for Rightsholders: Who Participates in a ‘Diligent Search’ under Present and Proposed Regimes?,” focuses on which parties must participate in the search process. The papers discusses four general approaches to orphan works – 1) limits on remedies against users of orphan works, 2) central-government granted licenses, 3) extended collective licensing regimes where collective management organizations license works similar to those owned by its members, and 4) hybrid approaches. All of these approaches involve different parties, but share one commonality: that some party, at some time, must conduct a search. Who that party is makes a difference in terms of their motivation, expertise, and ability to search. As policymakers consider orphan works proposals, they should recognize that more research is needed to understand the relative costs and benefits of allocating diligent search responsibility to different parties.

This paper explores just one aspect of the orphan works situation. The Berkeley team has produced several other resources on orphan works, including a major conference on orphan works and mass digitization and a series of white papers about the definition of orphan works, the range of proposals in the orphan works solution space, and the causes of the orphan works problem. Those are available here.

David Hansen is the Digital Library Fellow for the Berkeley Digital Library Copyright Project at U.C. Berkeley School of Law.  More information about the project can be found here:

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