'Orphan' Research Resources Kept on Lockdown

Academia relies on research, but sometimes research can be tied up by uncertainty and muddled laws. Such is the case with copyright 'orphans', works that are likely copyrighted but for which no copyright holder can be found. Orphan collections have proven to be a real dilemma for college and university libraries housing these works, especially when it comes to digitizing and making the works available to a wide audience. What to do? At the moment, no one knows for sure.

When the Risks Outweigh the Needs of a Few

You're doing research on the history of Mexican-American music and find that the University of California - Los Angeles holds a collection of rare 78- and 45-rpm recordings of this music, some of which are available online. But in dismay you discover that the only way to access the full online archive is to be on a computer connected to the campus network. Why?

Well, while it's highly unlikely, the possibility exists that someone could step forward claiming to be the copyright holder for those recordings. Had UCLA made the entire collection publicly available, the liability could have been enormous. The only way the university could present any of the material at all (outside of campus network computers, researchers can only hear 50 seconds of each orphan work) was under fair-use exceptions allowable for research under copyright law.

When it comes to copyright orphans, the biggest worry facing college libraries is the possibility of copyright infringement. This could happen should a library digitize a collection of orphan works and make it publicly available, and then have a copyright holder come forward and demand statutory damages through legal action. Damages of up to $150,000 per individual work could be sought.

copyright orphan academic fair use research

Many Colleges Playing 'Wait and See'

Based on this possibility (some argue improbability in many, if not most, cases), a number of college libraries are shying away from digitizing orphan collections at all. Besides the legal ramifications, some academic libraries are simply not confident they can be protected under the existing laws concerning copyright orphans, public domain and fair use exceptions.

And the problem doesn't just extend to written works and music recordings. Photographs, films and videos are affected as well. For example, the University of California - San Diego library system currently holds tens of thousands of marine science photos donated without copyright information to the Scripps Institution of Oceanography Archives; without that documentation, the library is limited in what it can make available online.

No small wonder college libraries are locking away the orphans and swallowing the key. Or, as Jessica Litman, a law professor at University of Michigan, put it to The Chronicle in May, simply boxing them up and hoping 'someone decides what to do with them next year'.

How It All Began

Blame for the current copyright orphan dilemma can be laid on laws enacted decades ago. Prior to 1978, any work was required to contain a copyright notice. In addition, the copyright was required to be renewed after 28 years (most, however, never completed the renewal procedure). By 1992, Congress had done away with these requirements; in 1978, it was deemed that any 'tangible work' was automatically copyrighted, in 1989 the copyright notice requirement was removed, and in 1992 the renewal process was done away with.

The end result? Record of copyright ownership has essentially been eliminated, making it increasingly difficult to find information about copyright holders. Basically, there's lots of works out there that have no copyright notice yet are still believed to be copyrighted materials.

Welcome to the problematic world of copyright orphans and the many questions it poses for legislators, scholars, librarians and researchers.

No Easy Answers for Orphans

For now, the entire mess has wound up in Congress' lap. Legislative proposals abound, including limiting the statutory damages a copyright holder could seek or granting broad licenses to cover many works rather than having researchers get rights on a work-by-work basis, but to date no specific laws have been written.

Because of the slow progress, some have taken the matter into their own hands. For instance, the University of Michigan stated in May that it will begin its own copyright investigation into the massive orphan works in the HathiTrust Digital Library, a collection of digitally-scanned works taken from universities. This investigation could help to make HathiTrust orphans more readily available to the public.

And in the meantime, other universities will continue to do what they've been doing in the past: offering orphans under fair use protection. In fact, some fear that legislation could prove more harmful than helpful, as laws might not work in the favor of college libraries. In the end, it is hoped that any legislation will prove to be fair to everyone involved.

Copyright orphans isn't the only problem facing research resources; learn more about Internet research and intellectual property laws.

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