Abstract

http://ssrn.com/abstract=2323945
 


 



Solving the Orphan Works Problem for the United States


David R. Hansen


University of North Carolina (UNC) at Chapel Hill - School of Law; University of California, Berkeley - School of Law

Kathryn Hashimoto


University of California, Berkeley - School of Law

Gwen Hinze


University of California, Berkeley - School of Law

Pamela Samuelson


University of California, Berkeley - School of Law

Jennifer M. Urban


University of California, Berkeley - School of Law

September 10, 2013

Columbia Journal of Law & the Arts, Vol. 37, No. 1, 2013
UNC Legal Studies Research Paper No. 2323945

Abstract:     
Over the last decade, the problem of orphan works — i.e., copyrighted works whose owners cannot be located by a reasonably diligent search — has come sharply into focus as libraries, archives, and other large repositories of copyrighted works have sought to digitize and make available their collections online. Although this problem is certainly not limited to digital libraries, it has proven especially challenging for these organizations because they hold diverse collections that include millions of books, articles, letters, photographs, home movies, films, and other types of works. Many items come with a complex, unknown, and (often) unknowable history of copyright ownership. Because U.S. copyright law provides for both strong injunctive relief and monetary damages (in the form of statutory damages of up to $150,000 per work infringed), organizations that cannot obtain permission often do not make their collections available at all.

In October 2012, the U.S. Copyright Office initiated a new study of orphan works and mass digitization, and has indicated that it is a high-priority policy issue for the office. That study, and the work that preceded it, has highlighted the wide array of perspectives about why and how to address the orphan works problem. In this article, we present evidence that the orphan works problem is very real and that it inhibits many socially valuable uses of copyrighted works by libraries, archives, museums and other memory institutions. We then canvass the array of potential solutions, and ultimately conclude that fair use, combined with the Copyright Office’s remedy limitation approach, are better approaches for addressing this problem in the United States than alternatives proposed elsewhere. Finally, we explore future-looking changes, such as the reintroduction of copyright formalities and the development of registries, that would reduce the number of orphan works in the future.

Number of Pages in PDF File: 55

Keywords: copyright, orphan works, digital libraries, fair use, digitization, Google, HathiTrust

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Date posted: September 13, 2013 ; Last revised: September 16, 2014

Suggested Citation

Hansen, David R. and Hashimoto, Kathryn and Hinze, Gwen and Samuelson, Pamela and Urban, Jennifer M., Solving the Orphan Works Problem for the United States (September 10, 2013). Columbia Journal of Law & the Arts, Vol. 37, No. 1, 2013; UNC Legal Studies Research Paper No. 2323945. Available at SSRN: http://ssrn.com/abstract=2323945

Contact Information

David R. Hansen (Contact Author)
University of North Carolina (UNC) at Chapel Hill - School of Law ( email )
Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
University of California, Berkeley - School of Law ( email )
215 Boalt Hall
Berkeley, CA 94720-7200
United States
Kathryn Hashimoto
University of California, Berkeley - School of Law ( email )
215 Boalt Hall
Berkeley, CA 94720-7200
United States
G. A. Hinze
University of California, Berkeley - School of Law ( email )
Boalt Hall
Berkeley, CA 94720-7200
United States
Pamela Samuelson
University of California, Berkeley - School of Law ( email )
Boalt Hall
341 North Addition
Berkeley, CA 94720-7200
United States
(510) 642-6775 (Phone)
(510) 643-2673 (Fax)
Jennifer M. Urban
University of California, Berkeley - School of Law ( email )
215 Boalt Hall
Berkeley, CA 94720-7200
United States
(510) 642-7338 (Phone)
HOME PAGE: http://www.samuelsonclinic.org
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