Magazine article Information Today

The Problem with Orphan Works

Magazine article Information Today

The Problem with Orphan Works

Article excerpt

The Internet provides a comparatively simple and inexpensive method for publishing and distributing content. Anyone who can use a server or Web-hosting service and has basic Web creation software, along with some spare time, can become a publisher who could theoretically reach as many readers as the largest traditional publishing company.

A new world of content distribution opens up when you add in digital conversion technologies--that's a world with both positive and negative aspects for owners of copyrighted material. The negative side includes file-sharing, appropriation of graphics and artwork. and pirated software and movies. On the positive side is the ability to preserve, archive, and distribute the scattered pieces of our social, cultural, and artistic histories. Universities, libraries, nonprofit organizations, and even some commercial companies are scouring their vaults to let users access what was once virtually lost to history.

Much of this nearly lost material, however, is still protected by copyright. Determining if a copyright still exists and, if so, who owns the copyright is often very difficult. If copyrighted works are used without permission, damages ranging from hundreds to thousands of dollars per item infringed may be awarded. For a library or nonprofit organization, the risk is too high, and much of this history may be lost or obscured.

Report on Orphan Works

These lost copyrights have earned the name "orphan works." After the Supreme Court's 2003 decision affirming the latest copyright term extension, Congress asked the Register of Copyrights to investigate the issue of orphan works, evaluate the challenges, and identify possible solutions. After a series of round-table meetings and a lengthy comment period, the Copyright Office released its "Report on Orphan Works" on Jan. 31. (The report is available at

The report concluded that the problem of orphan works is real. The passage of time, limited databases of information, changing ownership, and changing law have all contributed to the problem. The most common areas of orphan works are photographs, certain literary works (e.g., unpublished or anonymous manuscripts, letters, and personal materials), audiovisual works (e.g., home videos and instruction films, fine and visual arts), and ephemera (e.g., postcards, brochures, and pamphlets).

Is It Copyrighted?

For many works, a threshold question may be whether a work remains under legal copyright protection. For works created after 1978, the copyright law is unequivocal--copyright exists at the moment of creation and extends for a period of at least 70 years. For works created before 1978, the rules are different. Published works needed to be registered or they were not considered copyrighted. (Was it published and registered?) Under the old rules, copyright protection lasted for 28 years and could be renewed one time for an additional 28 years. (Was a work published in 1940 properly renewed in 1968?) Unpublished works were not protected by federal copyright, but they may have been protected by state law. (Where was the work created?)

The report assumed that copyright protection applied to orphan works and outlined the typical problems with orphan works. Copyrights are a form of property, and, like any property, they are subject to changing hands. Businesses that own copyrights may change locations, close down, be merged, or simply transfer the right to another business or person. …

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