Orphan works in the United States
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An orphan work is a copyrighted work whose owner is impossible to identify or contact. This inability to request permission from the copyright owner often means orphan works cannot be used in new works nor digitized, except when fair use exceptions apply. Until recently, public libraries could not distribute orphaned books without risking being fined up to $150,000 if the owner of the copyright were to come forward. This problem was addressed in the 2011 case Authors Guild et al. v. Google.
The orphan works problem arose in the United States from the Copyright Act of 1976, which eliminated the need to register copyrighted works. Instead, according to 17 U.S.C. § 102, all "original works of authorship fixed in any tangible medium of expression" are automatically granted copyright protection. This Act made obtaining and maintaining copyright protection substantially easier than the previous Copyright Act of 1909. It also made unnecessary any central recording system to track and identify copyright-holders, but also made it difficult to find or contact the creator of a copyrighted work if the person or organization was not readily known. Thus, any use of the orphaned work outside of what is permitted as fair use is potentially a violation of copyright. Potential users of orphaned works are often not willing to take on that risk of copyright violation, so they may individually investigate the copyright status of each work they plan to use.
To some, this scenario is not in the public interest; it limits works that are available to the public. It also discourages the creation of new works that incorporate existing works. Creators who want to use an orphan work are often unwilling to do so for fear that they will have to pay a huge amount of money in damages if the owner ever appears; the risk of additional liability or litigation may be too high. This makes the work of historians, archivists, artists, scholars, and publishers at times more difficult and costly than necessary. The issue arises in Wikipedia, where the copyright owner of a photo that would have illustrated an article may be unknown.
2006 study by US Copyright Office
In January 2006, the United States Copyright Office released a report on orphan works. This report was the culmination of a year-long study conducted by the office, based on open forums from the public to collect input.
In it, the Copyright Office states that new legislation is desperately needed to address the orphan works problem. The report proposed that if a nonprofit organization such as a library used an orphan work and the copyright owner came forward, then the library would be exempt from huge copyright infringement fines as long as it stopped using the orphan work right away. Commercial uses of an orphan work in which the owner came forward would only be charged a "reasonable compensation" of the profits, and use of the work would be allowed to continue.
The Office's proposed solution is thought to have favored publishers, and disfavored archivists and scholars.
Orphan works legislation
In 2018, the Music Modernization Act established a framework for orphan work sound recordings to be used: the user must submit the orphan work to the United States Copyright Office, at which point any copyright holder will be given 90 days to come forward and object to its use. If no rights holder emerges, or if the user successfully establishes the use is a noncommercial fair use of the recording, the recording may be used freely.
Attempts to make orphan works available
The University of Michigan (UM) is leading the HathiTrust orphan works project, an initiative to make orphan works published between 1923 and 1963 on HathiTrust available to the UM community. However, the project was put on hold as of September 2011 in the wake of a lawsuit filed against HathiTrust, UM, and four other member universities by the Authors Guild, Australian and Canadian authors' organizations, and eight authors to stop them from "reproducing, distributing and/or displaying" copyrighted works. This case was settled in HathiTrust's favor in Authors Guild, Inc. v. HathiTrust on January 6, 2015.
The Internet Archive in October 2017 started making available online some orphan works published between 1923 and 1941 inclusive, forming a collection called the "Sonny Bono memorial" (after Sonny Bono, an entertainer and advocate for perpetual copyright for whom the Copyright Term Extension Act was named). The effort is made possible by 17 U.S.C. §108(h) when applied according to some actionable criteria proposed by scholars.
- United States Copyright Office (2006). "Report on Orphan Works" (PDF). Register of Copyrights.
- Varian, Hal. "Copyrights That No One Knows About Don't Help Anyone". New York Times. Retrieved 22 October 2012.
- 17 U.S.C. 102.
- "Orphan Works". Center for the Study of the Public Domain. Duke University.
- Keeley, Joe. "Efforts by the U.S. Copyright Office". OrphanWorks.net. Retrieved 22 October 2012.
- Foster, Andrea. "Copyright Office Sides With Publishers in Proposal for Handling 'Orphan' Works". The Chronicle of Higher Education. Retrieved 22 October 2012.
- "Copyright: Orphan Works". American Library Association. August 2006. Archived from the original on 2006-11-25. Retrieved 2006-11-28.
- "United States Copyright Office".
- Stoltz, Mitch (19 September 2018). "The New Music Modernization Act Has a Major Fix: Older Recordings Will Belong to the Public, Orphan Recordings Will Be Heard Again".
- David Rapp. "HathiTrust Orphan Works Project Grows as University of California, Others Join Up". Library Journal. Retrieved 12 November 2012.
- David Rapp. "University of Michigan Puts HathiTrust Orphan Works Project on Hold". Library Journal. Retrieved 12 November 2012.
- "Books from 1923 to 1941 Now Liberated!". blog.archive.org. Internet Archive Blogs. Retrieved 2017-10-14.
- Gard, Townsend; Elizabeth (2017-10-02). "Creating a Last Twenty (L20) Collection: Implementing Section 108(H) in Libraries, Archives and Museums". Rochester, NY. Cite journal requires
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