Orphans Meet Mass Digitization

Article excerpt

Orphans are getting a lot of attention these days--orphan works, that is. One catalyst for the interest originated in Google's book digitization project, which brought copyright issues into the limelight. Another is the changing length of copyright protection. As books remain under copyright longer and the impetus for mass digitization increases, orphan works become more of a problem.

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Many in the information world think of orphan works as books where the author can't be identified or found. That's too simplistic a definition, as Kenneth Crews, director of Columbia University Libraries/ Information Services' Copyright Advisory Office, explained during the 16th annual Berkeley Center for Law & Technology/Berkeley Technology Law Journal Symposium, April 12-13.

Stakeholders include authors as well as photographers, publishers, museums, researchers, filmmakers, licensors, and database developers. Crews showed a photo, credited to Reuters/The New York Times, of "real" orphans--children whose parents died when the RMS Titanic sank--and questioned whether either Reuters or The Times truly owned the rights.

Eric Schwartz, a partner with the law firm Mitchell Silberberg & Knupp, LLP and founding director of the National Film Preservation Foundation/National Jukebox Project, said that the phrase "orphan works" was coined by National Film Preservation Board chair Fay Kanin and bemoaned the fact that between 80% and 90% of silent films are irretrievably lost. Schwartz sees orphans as films "without commercial benefactors."

Brewster Kahle, digital librarian and founder of the Internet Archives, added his own definition of orphan works: "Artifacts that are not being actively sold, not just those where the claimant can't be found." From his experience with mass digitization, Kahle said it's "massively distributed" and showed palm leaves with writing on them being scanned in Bali.

Introducing 'Hostage Works'

Lydia Loren, a professor at Lewis & Clark Law School, suggested that we abandon the orphan metaphor and call these "hostage works" because they are held hostage by the extension of copyright law. She foresees the risk of underproduction of information and recommends eliminating monetary liability in cases where a diligent search to find rights owners has occurred. The definition of "diligent search" is difficult, however, and not everyone at the symposium agreed on it.

Mass digitization projects stem from a desire to preserve culture, history, literature, and scientific knowledge. These may be laudable intentions, but as is frequently the case, technology outstrips legal considerations. Google certainly proved it had the technology to digitize vast quantities of books, but whether it had the legal right to do so is still unclear. …

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