Joining Michigan and the HathiTrust in the Orphan Works Project are the libraries at Cornell, Duke, Emory, Johns Hopkins, and the Universities of Florida, Wisconsin, and California. Each of the libraries will identify and then scan materials from their collections that are no longer in print and for which the copyright owner cannot be identified or located. These materials have taken on the name “orphan works” because they remain copyrighted under U.S. law, but have no identifiable copyright owner to contact for permission to digitize, reprint, or otherwise use. Consequently, they sit languishing on library shelves and are essentially lost to the digital revolution.

Because these works are protected by copyright, the act of digitizing and posting the books to a database could be considered copyright infringement with penalties of up to $30,000 per book. The Google Books project was (and remains) an attempt by Google to partner with many of the same libraries to scan books and make them available through Google Books. Google was sued by several authors and publishers for copyright infringement but reached a settlement that would have allowed the creation of a subscription database, payment of royalties to copyright owners when identified, creation of a registry for orphan works, and a provision that owners could “opt out.” However, the court has so far rejected the settlement as going too far by allowing digitization without the owners’ permission in advance as required by law. The court was also concerned that the project gives Google too much of a monopoly power over the subscription database.

The Orphan Works Project hopes to avoid similar copyright problems by relying on copyright’s fair use doctrine, which permits some uses of copyright works without permission for scholarly, research, teaching, and other beneficial purposes. Because all of the participants are nonprofit universities, they hope to avoid the commercial use problems that Google faces. In addition, the use of orphan works scanned under the project will initially be restricted to on-campus users only. Students/faculty and staff will be able to access the resources through campus networks, and walk-in users can access the works from library computers, however, the resources will not be available through the internet. However, as the HathiTrust Digital Library already makes books in the public domain available, they would have the capability to add these “orphan works” resources similarly available in the future.

Copyright experts are torn over the legality of the Orphan Works Project. Fair use is a limited exemption to copyright infringement with specific requirements. The works must be used for research, scholarship, teaching, or similar purposes, and then are evaluated based on several specific factors. These factors include the nature of the use, such as whether it is “transformative” or mere duplication, how much of the work is being used, what is the nature of the original work, and is there an impact on the market for the work. Copyright officers at Duke and Emory have pointed out that access is restricted to on-campus patrons for their research and scholarship, that the digital database “transforms” access to the work, and that because the works are out-of-print with no identifiable copyright owner, the impact on the market for the book is minimal. They also assert that if a copyright owner shows up and objects, they will remove the work from the database.

However, copying the entire work as the Orphan Works Project plans to do, and as Google did before them, usually argues against a finding of fair use. In addition, while the database may transform access to the books, it could be seen as simply a different form of copying. Finally, the amount of time and money that Google has put into the Google Books project suggests that there is a digital market for out-of-print books that would be impacted by the Orphan Works Project.

The ongoing lawsuit involving scanned works placed on e-reserve and course webpages at Georgia State University suggests that the legal issues for fair use in an academic environment are not yet resolved. In rejecting the Google Book Settlement, the judge suggested that it was up to Congress to enact the necessary changes in the law to allow digitization of and database access to orphan works. While there have been several proposals to change copyright law—usually permitting the use after a “reasonable” search for the owner—the law remains the same.

Nonetheless, the project is moving forward, and the HathiTrust aggressively developing new methods for accessing their resources. Prior to the Orphan Works Project announcement, the HathiTrust, Indiana University, and the University of Michigan received a grant to investigate new methods of searching and analyzing text in massive data sets. This could have the potential to allow researchers to use specialized algorithms to locate “anything as simple as repetition of words to complex linguistic structures” while not requiring access to copyrighted text. And, just last week, the HathiTrust announced that its existing public domain content will be accessible in full-text through OCLC’s WorldCat and as part of the EBSCO Discovery Service (EDS).

In addition, a widely anticipated report commissioned by the U.K. recommends a copyright exchange and licensing solution to the digital works problem within the European Union (“Digital Opportunity:  A Review of Intellectual Property and Growth”). Once a “diligent” search is conducted by anyone within the exchange, a license would be issued for use of the item. Revenues would be held for potential owners or paid to social or cultural societies. The report also argues that the economic and cultural value of “freeing” orphan works outweighs the risk to rightsholders. This report may have some influence on proposed changes in U.S. law.

However, for the time being the status quo remains. The Google Book Settlement goes back before the court this week (Sept. 15), but no changes are expected. However, the Orphan Works Project, along with the U.K. report and Google Book project, seem to be accelerating the recognition of the problem and the need for a legal, economic, or other solution.