The Authors Guild v. Hathitrust: A Way Forward for Digital Access to Neglected Works in Libraries

Abstract

Due to changes in copyright law since the United States joined the Berne Convention, a growing number of copyright holders cannot be located. This leads to a market failure in which those who would pay a reasonable licensing fee nevertheless cannot make use of the works. While past literature has focused on desired commercial uses of these so-called orphan works, the recent case of The Authors Guild v. HathiTrust has brought the issue of educational, nonprofit uses of these works to the fore. This Comment begins by describing the HathiTrust Orphan Works Project and what it renames the neglected works problem. Next, it examines the legality of the project under current copyright law, focusing mainly on fair use under section 107, and concludes that it is unclear whether the project violates copyright law. Finally it analyzes whether this result fits the policy goals of copyright, and because it does not, proposes both legislative and judicial changes to copyright law to make it clear that in the proper circumstances, nonprofit, educational uses of neglected works do not violate copyright law.

Keywords: copyright, libraries, archives, orphan works, neglected works, HathiTrust, Google Books

JEL Classification: K00, K39, O34