Download this Paper Open PDF in Browser

Solving the Orphan Works Problem for the United States

55 Pages Posted: 13 Sep 2013 Last revised: 16 Sep 2014

David R. Hansen

Duke University Libraries; University of North Carolina 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

Date Written: September 10, 2013

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.

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

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: https://ssrn.com/abstract=2323945

David R. Hansen (Contact Author)

Duke University Libraries ( email )

100 Fuqua Drive
Durham, NC 27708-0204
United States

University of North Carolina 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 )

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

HOME PAGE: http://www.samuelsonclinic.org

Paper statistics

Downloads
418
Rank
57,329
Abstract Views
3,020