The review, “Digitizing Orphan Works: Legal Strategies to Reduce Risks for Open Access to Copyrighted Orphan Works,” was written by David Hansen, clinical assistant professor of law and faculty research librarian at the UNC (University of North Carolina) School of Law. Its goal is to “change the face of the orphan-works problem in the United States.”

Traditional Copyright Faces 21st-Century Realities

In 2008, Congress began to consider major reforms to copyright, specifically looking at the issue of orphan works—works whose owner cannot be found. The suggested reforms were widely panned. Lawyer and political activist Lawrence Lessig called them “an amazingly onerous and inefficient change.” He explained that the problem of orphan works “was caused by a fundamental shift in the architecture of copyright law. Before 1978, copyright was an opt-in system, granting protection only to those who registered and renewed their copyright, and only if they marked their creative work with the famous ©. But three decades ago, Congress created an opt-out system. Copyright protection is now automatic, and it extends for almost a century, whether the author wants or needs it or even knows that his work is regulated by federal law.” The congressional discussions didn’t result in any new legislation.

As Supreme Court Justice Stephen Breyer noted in his dissent for the case Eldred v. Ashcroft, the Sonny Bono Copyright Term Extension Act from 1998 “extends the term of most existing copyrights to 95 years and that of many new copyrights to 70 years after the author’s death. The economic effect of this 20-year extension—the longest blanket extension since the Nation’s founding—is to make the copyright term not limited, but virtually perpetual.” A 1998 Congressional Research Service study, “CRS Report for Congress, Copyright Term Extension: Estimating the Economic Values,” estimated that only 2% of works that are 55–75 years old retain their commercial value. However, many of these works are technically in the public domain, and without a way to determine their status, users have to presume that they’re still under copyright.

According to The Economist, “The British Library estimates that 40% of the copyrighted work in its archive is orphaned. …” A 2013 U.K. law “allows the government to grant firms or organisations the right to use orphaned material, providing ‘a diligent search’ for the copyright owner is first carried out. It also allows for the creation of an organisation that might levy licensing fees on behalf of absent content creators—and which would pay out to rights holders who subsequently discover their work has been sold.” Although not a perfect solution, it moves the issue far beyond how the U.S. has handled it.

Bobby Glushko, associate chief librarian at the University of Western Ontario Libraries, believes there are wide differences between the U.S. model and other western countries’ models. “The Canadian and the American context are very different with regards to the guidance given to higher education by the [Supreme] Court, courts, and administrative bodies. The Georgia State University case can reasonably be read as a rejection of mechanical/semi-mechanical applications of fair use. In Canada, there has been a more general acceptance that semi-mechanical fair dealing guidelines are reasonable and proper. CCH Canadian Ltd. v. Law Society of Upper Canada is SCC [Supreme Court of Canada] precedent to this point.”

The Chilling Effect of the Georgia State Fair Use Case

“Copyright is a complicated and complex issue,” says Linda Frederiksen, head of access services at the Washington State University–Vancouver’s library. “Librarians and general counsel attorneys at academic institutions often lack specific education and training in intellectual property/copyright law. As a result, risk aversion is probably a natural (and appropriate) inclination. The questions that are asked of librarians and general counsel with regards to copyrighted works are very rarely ones that can or should be answered quickly and without further research. I think that need to do further research before providing an answer or comment is sometimes seen as being risk adverse. I would say that the Georgia State case, and others that are related to copyright in higher education, because of their complexity, reinforce rather than weaken the need for careful consideration of copyright questions.”

Kevin Smith, dean of libraries at the University of Kansas, says, “I do think things are getting better in regard to fair use for higher education. We need to look more broadly than the [Georgia State] case. That litigation has been largely favorable for electronic reserves, but it is a small part of the overall picture. Creating fear, of course, was the purpose of the plaintiffs when they filed the case, and I would encourage librarians to look at the rulings in that case, but also at other rulings involving fair use. Our courts have been adapting the fair use analysis for the digital environment in a variety of contexts. That adaptation is overall very favorable to the core activities of teaching and research, especially as we emphasize engagement with the process of research and creativity for all of our students. When we look at that larger picture, I think we see an expanding space for fair use in education.”

Harvard’s Effort to Frame Orphan Works

Harvard Library defines an orphan work as “any original work of authorship for which a good faith, prospective user cannot readily identify and/or locate the copyright owner—especially in situations, like digitization projects, where permission from the copyright owner is legally necessary. Orphan works can be books, photographs, movies, music, or any other copyrighted media.” It is launching an initiative to free orphan works in its collections by building a carefully curated online portal called the Orphan Works List.

Author Hansen hopes the review “gives librarians and archivists (and their lawyers) more confidence in the strength of their legal position so that they can make thoughtful forward progress in digitizing orphan works for open access. The narrative from the Copyright Office and others has been that existing law isn’t sufficient, even when accounting for fair use. We believe existing law is sufficient. This ‘Digitizing Orphan Works’ report reviews over twenty different legal defenses and strategies for making open access to orphan works. We want librarians and archivists to see that they do have options and can move forward today using the laws that we already have. We also hope the report will help encourage libraries and archives to communicate more with each other about the legal strategies that they are adopting and to share how those strategies are working in practice.”

“We also hope the report will encourage lawyers, and not just librarians and archivists, to have more confidence in the legal strength of their positions,” Kyle Courtney, copyright advisor for Harvard University, says. “This report should help non-copyright-specialist lawyers see defenses and strategies they would not otherwise have seen or had time to research in depth. Our ‘scorch the earth’-like research was a monumental task that [Hansen] mastered in writing this report. Also, the report may give rise to new legal protection to the digitization of orphan works, which, in many cases, are locked away from scholarship and use. What a shame. Some of these orphans could, potentially, create whole new areas of scholarship to explore. We hope the report could help stimulate further digitization of materials, greater use and access, and, thereby, greater open access.”

Glushko believes the Harvard report is a major step forward. “I like how it’s a sign that we’re increasingly comfortable talking about fair use in an assertive manner, as opposed to something we do sneakily behind closed doors. Fair use is not a cheat or a cut-around; it’s an integral part of copyright law.”