Author(s): Pamela Samuelson and Jennifer Urban
Year: 2013
Abstract:
Over
the last decade, the problem of orphan works — i.e., copyrighted works
whose owners cannot be located by a reasonably diligent search — has
come sharply into focus as libraries, archives, and other large
repositories of copyrighted works have sought to digitize and make
available their collections online. Although this problem is certainly
not limited to digital libraries, it has proven especially challenging
for these organizations because they hold diverse collections that
include millions of books, articles, letters, photographs, home movies,
films, and other types of works. Many items come with a complex,
unknown, and (often) unknowable history of copyright ownership. Because
U.S. copyright law provides for both strong injunctive relief and
monetary damages (in the form of statutory damages of up to $150,000 per
work infringed), organizations that cannot obtain permission often do
not make their collections available at all.
In October 2012, the
U.S. Copyright Office initiated a new study of orphan works and mass
digitization, and has indicated that it is a high-priority policy issue
for the office. That study, and the work that preceded it, has
highlighted the wide array of perspectives about why and how to address
the orphan works problem. In this article we present evidence that the
orphan works problem is very real and that it inhibits many socially
valuable uses of copyrighted works by libraries, archives, museums and
other memory institutions. We then canvas the array of potential
solutions, and ultimately conclude that fair use, combined with the
Copyright Office’s remedy limitation approach, are better approaches for
addressing this problem in the United States than alternatives proposed
elsewhere. Finally, we explore future-looking changes, such as the
reintroduction of copyright formalities and the development of
registries, that would reduce the number of orphan works in the future.
Keywords: copyright, orphan works, digital libraries, fair use, digitization, Google, HathiTrust
Link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2323945