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How Fair Use Can Help Solve the Orphan Works Problem

52 Pages Posted: 23 Jun 2012 Last revised: 1 Jul 2014

Jennifer M. Urban

University of California, Berkeley - School of Law

Date Written: December 2012

Abstract

Many works that libraries, archives, and historical societies would like to digitize are “orphan works,” that is, works for which the copyright holder either is unknown or cannot be located after a diligent search. Due to copyright risk if an owner later shows up, nonprofit libraries and similar institutions have been reluctant to digitize and make these works available, greatly limiting access to important cultural and historical information.

While a legislative fix may soon be proposed, this Article argues that legislation is not necessary to enable some uses of orphan works by nonprofit libraries and archives. Instead, U.S. copyright law’s fair use doctrine, which allows certain unpermissioned uses of copyrighted works, provides a partial solution.

Though it is an incomplete solution, fair use has some significant advantages over other approaches through which libraries and archives could make publicly beneficial uses of orphan works. Under fair use, there is no need to develop a licensing system, significantly reducing administrative and transactional costs, and eliminating socially wasteful license fees for works that are not on the market, and for which an owner is unlikely to exist. Second, fair use has the flexibility to accommodate change over time as libraries and archives discover the best ways to search for owners, preserve works, and make them available. Finally, allowing fair use of orphans by libraries and archives helps fulfill copyright’s critical purposes of promoting the dissemination of knowledge and supporting speech and free expression.

Keywords: copyright, fair use, libraries, archives, orphan works, digital libraries, digitization

Suggested Citation

Urban, Jennifer M., How Fair Use Can Help Solve the Orphan Works Problem (December 2012). Berkeley Technology Law Journal, Vol. 27, 2012; UC Berkeley Public Law Research Paper No. 2089526. Available at SSRN: https://ssrn.com/abstract=2089526

Jennifer Urban (Contact Author)

University of California, Berkeley - School of Law ( email )

342 Boalt Hall, North Addition
Berkeley, CA 94720-7200
United States
(510) 642-7338 (Phone)

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