Orphan works are those books, records, images, compositions, manuscripts, movies, screenplays, paintings and drawings — in short, any work protected by copyright — whose owner cannot be determined, located, or who does not respond when contacted. We have always had orphan works, but a number of factors have converged to turn their existence into a significant lost opportunity. In the past, who really cared? Orphan status may have been unfortunate, but for the most part, it was just what happened over time. The need to exercise the rights of the copyright owner, that is, to make copies, create derivative works, display, perform or distribute an older work publicly, beyond the rights authorized in the Copyright Act, typically did not arise. Not so today. Now, because of the drive to digitize library, archive and museum holdings, and offer access to them to as broad an audience as we can, the orphans will suffer a fate equal to death — the obscurity resulting from their inability to be “permissioned,” digitized and displayed.
As has been widely documented and reported, the vast majority of books on our shelves are still protected by copyright, but their copyright owners are unreachable. The cost of misidentifying an orphan is extremely high: a copyright owner who registered her copyright can ask a court to award up to $30,000 per innocent infringement. These extreme penalties are meant to deter infringement, but in this case, they deter activity that no one will object to in most, if not all, cases. Nevertheless, a small chance of being wrong, but a high penalty if one is wrong, makes for a risky situation. So what’s going to happen to all those orphans? The promise of renewal on the Internet dangles temptingly for them, but only very brave librarians will take this risk and digitize and display them.
And, I believe, that’s just what we have, cautiously brave librarians.
The photographers’ successful campaign to destroy the chance for effective Congressional legislation regarding orphan works, to which I referred in earlier sections, draws the line in the sand. Either those who care whether a staggeringly large part of our cultural record ever makes it off the shelves, out of the boxes and onto the Internet, are willing to step over or they are not. Enormous numbers of works give no signs of who the author is, who the publisher was or when the work was produced or distributed. If a work is published without proper notice (name of publisher and date) during certain time frames (1923 – 1989), it becomes a part of the public domain. But if it is not published, or if it is published after 1989 without an indication of who its author is, its protection is automatic and lasts for the life of the author plus 70 years in the U.S. (and longer in some countries). If you can’t determine the author, you can never know when such works enter the public domain. The obscurity we consign these works to is not a temporary condition. It is forever. The cost of doing nothing has become unacceptably high.
Without legislation reducing the enormous penalties for being wrong, there is considerable pressure to get the “reasonable search” for an owner right, so that the reasonable search becomes our insurance against catastrophe. This calls for collaboration. Librarians are beginning to build an evidence base, at first dedicated to freeing the books that are in the public domain, but not currently properly identified as such. But next in line are the orphans. The routine we engage to determine whether a work is properly copyrighted (notice) and whether the copyright was renewed as required merges imperceptibly into an inquiry into when an author died, where are his heirs, whether a publisher is out of business, where the last place of business was, and on down the line. Participants in this project will document sources of law and the factual information about each book, author and publisher, document results and publicly display the process and the findings so that others may build upon what has been learned. In the U.S., evidence about a particular book’s publisher’s disappearance identifies not just one orphan book but every book that publisher owned. When copyrights are owned by individual authors, evidence that an author left no estate or heirs identifies as orphaned every book she ever wrote. So it is important to publicly conserve this evidence and rebuild not only our public domain, but identify our orphan works. Slowly but surely, librarians will put together the evidence we need to feel confident that, even facing draconian penalties, we can reduce the risks to manageable levels.
There is additional evidence that other risk-averse institutions are also beginning to wade into these waters. Brewster Kahle, long committed to bringing public domain works to a world audience, was reported in hangingtogether.org (OCLC) to have encouraged participants at Open Content Alliance’s (OCA) annual meeting (2007) to take the next step with a pilot-project that will “start digitizing out-of-print/in copyright works, a departure from the strictly public domain digitization in the OCA to date.”
Brewster could be standing shoulder-to-shoulder with Google in relying on fair use for the digitization step, but if he plans to offer these works to a public audience, he would be going much further, perhaps claiming these works as orphans. It’s not clear from the hangingtogether.org meeting notes, but if Brewster is venturing into making orphan works available, he would be grappling with the same issue described above — establishing the contours of the reasonable search that establishes the fact of orphan status. Perhaps the project seeks permission, and in the failed attempt, determines that a work is an orphan. This will be a project to watch.
Here again, however, the sad consequence of Congressional paralysis is looming copyright irrelevance. The pronouncement by then Patent Commissioner, Bruce Lehman, that, “[w]ith no more than minor clarification and limited amendment, the Copyright Act will provide the necessary balance of protection of rights — and limitations on those rights — to promote the progress of science and the useful arts,” turned out to be dead wrong (introduction to the 1995 NIITF White Paper). In marked contrast, he confidently dismissed opponents’ concerns that turned out to be deadly accurate, among others, that fighting technology would result in massive disrespect for the law. And its ultimate irrelevance. Isn’t this too high a price to pay?