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Orphan Works - When No One Knows Who Owns the Copyright

"Orphan work” is a term used to describe the situation in which the owner of a copyrighted work cannot

be identified and located. These works may be unpublished, or the publisher may be out of business.  They are not confined to print works or literary works.  Many early films have no information regarding who made them. Anyone who wishes to use these works, which are not in the public domain, is hard pressed to know if they may assume that the copyright owner will come forth and claim infringement, or whether the works are truly orphaned and it will be appropriate to use them because the copyright is basically abandoned.

 

Archives in particular may end up having fairly substantive amounts of orphan works in collections due to the nature of items that are contained in them. The urgency of this problem helped the Society of American Archivists (SSA) to create a document of their best practices regarding orphan works and they have made it freely available.

Basic principles that the SSA uses in their document include:

·         Multiple legal rationales may apply to a specific project or use;

·         Holdings in archival collections should be used, not left unused because of obscure

ownership status;

·         Common sense should apply.

 nstitutions and individuals should document any process they employed to determine that rights holders cannot be located.  Such processes can be standardized, so that a workflow for determining orphan works may be established and  made as efficient as possible.

 

Efforts to provide legislation around orphan works have so far failed to attract significant attention in the US Congress, however this year the Copyright Office is making efforts to provide some leadership in this area. Hearings regarding orphan works were held in March of 2014 and the Library of Congress website is requesting public comment.  You may wish to pay attention to the Copyright.gov site on orphan works over the coming few weeks to obtain relevant information from the round table discussion transcripts and video:    

Background

The Copyright Office is reviewing the problem of orphan works under U.S. copyright law in continuation of its previous work on the subject and to advise Congress on possible next steps for the United States. The Office has long shared the concern with many in the copyright community that the uncertainty surrounding the ownership status of orphan works does not serve the objectives of the copyright system. For good faith users, orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace. The issue is not contained to the United States. Indeed, a number of foreign governments have recently adopted or proposed solutions.

During its review, the Office has requested comments and held public roundtables in Washington DC on March 10-11, 2014, which were videotaped and transcribed. During these roundtables, the Office heard a variety of viewpoints on a wide range of issues impacting orphan works and mass digitization efforts. The Office will post the transcripts and video on the Office website as they become available. 

Comments are now due by 5:00 p.m. EDT on May 21, 2014. For more information, please see 77 FR 18932

 

There is also considerably more information at this site from the Federal Register original Notice of Inquiry by the Library of Congress.

If you have questions about copyright, please contact Lorre Smith of the University Libraries at lsmith@albany.edu, or drop by the reference desk!


Blog post created by Lorre Smith