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Free the Books

conjugating international copyright laws
As a Google Library Partner , The University of Texas Libraries will digitize at least one million books from the Libraries’ unique collections, starting with our Nettie Lee Benson Latin American Collection. This rich collection holds over 800,000 titles about and from Mexico, Central and South America and the Caribbean. Librarians, faculty and alumni acquired these works by gift, exchange and purchase over eight decades to create a comprehensive collection to support teaching and research at the university.

Current technologies enable us to provide virtual access to these collections for study anywhere, but a tangle of international treaties and copyright laws complicates our use and distribution of foreign works. There is little guidance to help us reliably identify which of our books are already in the public domain so we are piloting a project to develop new tools for ourselves and for anyone who wants to tackle these difficult public domain problems. We will document our process, our progress and our results on these pages along with links to web resources we find useful. We invite suggestions and comments from other Google Library Partners and anyone undertaking similar or related projects. Comment on our posts.

Email us at freethebooks@gmail.com. We are here; we are building an evidence base and we are looking for virtual partners!

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 / conjugating international copyright laws

Rescuing orphans from obscurity


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?

2 Responses to “Rescuing orphans from obscurity”

  1. DaveDavis |

    FYI in this context – some information about DiscoverWorks, a new wiki-based site we are bringing up towards addressing the orphan works problem, as well as dealing with other obscure works which may have long-term interest…

    “DiscoverWorks.org addresses orphan works issues and other challenges that arise from missing content metadata. DiscoverWorks.org was built on the same platform as Wikipedia. It is a global hub that allows people to freely exchange information on all kinds of copyrighted works as part of a worldwide, online community. Through their participation in this community, content users, creators and other participants can help create a resource where anyone, anywhere, can find or share rights information and other useful details on books, photos, graphic art, music, videos, textile designs and any other type of copyrighted material.”

    We are in early beta, but if you would like to take a look and offer feedback, I’d be thrilled. One intended use of the DiscoverWorks platform is to create pages for obscure works and creators- those lacking critical metadata, for instance- whose obscurity might be reduced via a “crowdsourcing” (e.g. wikipedia-like) approach. Someone out there might know…


    The site is non-commercial. (I am the Moderator for now.)

    /Dave Davis

  2. georgiak |

    Thank you, Dave, for bringing this to our attention. It’s early in the process for all of us who want to work on this problem, so the more ideas about how to go about it, the better. I think the crowd-sourcing idea is at the heart of a lot of people’s thinking on this, though ultimately, the issue will be how much courage an individual user has, based on the available information at any given time, courage to make a use of a work always on the basis of imperfect information. I guess we had better get used to that idea, with Congress incapable of addressing concerns like these that lack unanimous support from the various copyright owner industries.

    I see that Copyright Clearance Center plans to support DiscoverWorks in its beginning, but will step away once the community takes active interest in the wiki’s management. I applaud that intention and hope it works out for you that way.