What’s Up with Orphan Works?
Will legislation be introduced in the 111th Congress? According to Maria Pallente, Deputy General Counsel at the US Copyright Office, yes. Pallente’s hope is that orphan works legislation can be dealt with early on in the new Congress, a repeat version of the Senate bill (S. 2913) from this fall that most stakeholders have been willing to accept.
For libraries, the orphan works issue is pretty simple.
1. Libraries want to use orphan works for preservation purposes or to add to their digital collection so access to the work can be enhanced.
2. If the rights holder cannot be found after a reasonable search, the library can go ahead and use the work.
3. If the rights holder turns up later, the library and rights holder can agree on a license agreement for the use of the work.
4. If the rights holder takes the matter to court, then statutory damages would be limited or eliminated altogether for noncommercial uses.
Librarians try very hard to get permission from rights holders when necessary. They spend a lot of time conducting a diligent search. (They are good at this because they are librarians.) If the rights holder cannot be found, the library does not use the work. Often, librarians will seek the advice of legal counsel, who tend to offer the “better to be safe than sorry” opinion. End of story.
Why do we care? So what, we can’t preserve something? It’s not like it’s the end of the world. But librarians take very seriously their responsibility to society to preserve the cultural heritage. The works libraries want to preserve are orphans without caregivers. They have no commercial viability, and haven’t for a very, very long time otherwise the rights holder could be found.
Our hope is that orphan works legislation will be straight-forward, without a lot of unnecessary hoops to jump through. This is the same opinion of the U.S. Copyright Office who has studied this issue for a long time. We can keep our fingers crossed. But we also must continue to recognize that no orphan works legislation will be a lot better than bad orphan works legislation.
