What are orphan works? These are copyrighted materials whose "owners" cannot be located. This has become a huge problem for scholars, and particularly for any sort of historian, including those in law schools who use older texts. As our faculty and we, ourselves, do more interdisciplinary work, we will be running into this more frequently. The frustration is huge. The Center for the Study of the Public Domain at Duke University has two proposals on orphan works and orphan films and mitigating the costs of each to scholarship, libraries, and archives.
How did we get here? Over 30 years, copyright law has bit by bit relaxed the requirements that copyright owners DO anything to assert or manage their right to that property. At one time, a copyright owner had to register a copyright with the Library of Congress, and to renew their ownership interest every so many years. But a series of public laws extended the copyright length several times, now to the life of the producer plus 70 years.
In 1989, Congress removed the condition that published works must contain a copyright notice. In 1992, it removed the last vestiges of the renewal registration requirement. In 1994, many foreign copyrights were extracted from the public domain. The net result of these amendments has been that more and more copyright owners may go missing. To be sure, such revisions were enacted to protect authors from technical traps in the law and to ensure United States compliance with international conventions. But there is no denying that they diminished the public record of copyright ownership and made it more difficult for the business of copyright to function.(The Importance of Orphan Works Legislation, September 25, 2008, Marybeth Peters, Register of Copyrights. As requested by Senator Orrin Hatch and Senator Patrick Leahy, the Office submitted its Report on Orphan Works to the Senate Judiciary Committee on January 31, 2006. visited 4/18/11) The most recent legislation referred to in the report mentioned here, Shawn Bentley Orphan Works Act of 2008, SB 2913, passed in the Senate, but apparently died in the House. (use the link at the Copyright report site to go to Thomas.gov and see the information)
The Google Books Amended Settlement Agreement was a different way to deal with what are called "orphan works." In fact, the progress of this Settlement may be why there was no further effort in Congress at legislation after 2008. In fact, part of Judge Chin's dissatisfaction with the Settlement was its method of dealing with the orphan works, agreeing with many of the critics of the Settlement. Judge Chin's ruling called specifically for legislation to deal with orphan works.
In a lengthy article that appeared in the Chronicle of Higher Education March 23, 2011, "Research Libraries See Google Decision As Just a Bump on the Road to Widespread Digital Access," by Jennifer Howard. The author reports that John Wilkin, executive director of HathiTrust (and Associate University Librarian for Library Information Technology at University of Michigan), says that they are talking with Google about a possible renewed coalition to lobby for legislation on orphan works. They want to look, not just at the U.S., but around the world, at copyright legislation that affects orphan works because it really is a global issue. The Digital Public Library of America, envisioned and publicized by Robert Darnton here and here and hosted by the Berkman Center, sessions blogged by John Palfrey, one, two, three and four; and workshop blogged by Dan Cohen and David Weinberger and March 1 Workshop notes. I only find mention of orphan works in any of the notes in Palfrey's session notes, 3 first paragraph, speaking about the need for the different problems of copyright problems for the library to be invisible to the users of a Digital Public Library:
1) Materials that are in copyright will have to be thought about by the DPLA differently (the red zone) from those in the public domain (green) or orphan works and gray literature (yellow). But ideally the members of the public accessing the works would not know about these differences when approaching the content. This issue leads to the tiering issue (or perhaps we need a different word) for DPLA. From a user perspective, could we make it not matter whether the material, before coming to DPLA, was red, yellow, or green? There are a variety of ways that might come to pass, including a possible alternative compensation model for books as a way to pay creators. (For a proposal to create two types of alternative compensation system in a parallel field, music and movies, see William W. Fisher, Promises to Keep, Ch. 6).and his fourth notes:
As another related point: We should have a legislative solution to tricky copyright restrictions in mind, as a proposal (or a package of proposals), but we need also to make progress absent, or at least prior to, legal change. In addition to orphan works issues, there are copyright issues laden in scholarship associated with computation and massive data sets, as an example.And a very similar comment in the March 1 Workshop notes under the heading "Copyright problems are the biggest issue facing a DPLA," with a conclusion that "legal reform" will be required. So, it appears that the Digital Public Library folks are still thinking of working towards legislative solutions for orphan works problems, as at least one tool in their chest. I find it hopeful that they are willing to try for progress even while waiting on the legislative solution, which looks like a lengthy road. Copyright lobbyists for major corporate copyright holders these days (like Disney for instance), push incessantly for more and more, regardless of what it might mean for the rest of the world. I wish the Digital Library folks well!
The decoration for this post is actually an advertisement from a Chicago newspaper about orphans, but the blog post where I found it was fascinating (Petticoats & Pistols: The Orphan Trains, dated May 13, 2008, by Stacey Kayne, visited 4/18/2011). These orphanages were not really what we think of as adoption placement agencies, and not all the children received were actual orphans, either, according to the blog. This was during the Industrial Revolution, and many parents were injured or killed at work and the single remaining parent could no longer afford all the children, so they were sent away. Or they simply could not afford all the children they had, and some were sent off. These children from the big cities were shipped out west to the settlers on the prairies along railroads, who could select children to "adopt" or take into their families. They signed a contract with the agency. Apparently some had happy lives, and some were essentially unpaid laborers exploited cruelly. Some agencies checked back on the children they sent out, and some apparently did not. A fascinating piece of history I had never heard of, not being from that part of our country! Stumbled upon, looking for an illustration of "orphan works!"