Digital v. Analogue: Reconceptualising the Orphan Works Problem for Cultural Heritage Institutions

Abstract

For cultural heritage institutions (CHIs) the divide between material and immaterial is epitomised by the impact of digital technologies. Ideally, in line with theories of cultural property and the objectives of CHIs, CHIs should be able to make use of the enhanced opportunities provided by digital technologies for effective archiving and preservation and for increased public accessibility to their collections. In practice however due to large numbers of works that are copyright orphan works in their collections, CHIs are legally unable to do this because effective digital archiving requires that many copies be made of the physical item. Permitted uses for archiving and preservation in copyright laws generally permit only one copy to be made for preservation purposes and strictly limit its availability to the public. Furthermore, there is no permitted use that would allow a digital copy to be made and posted online for improved public accessibility. Wary of the unsupportive legal environment, some CHIs have adopted a policy of accepting works for their collections only if the copyright owner of the work signs a release permitting the CHI to digitise the work for its objectives. This new policy creates a gate-keeping role which cannot be justified by cultural heritage theories and reinforces the need for urgent solutions to the orphan works problem.

This chapter describes and critiques recent initiatives which are intended to address the orphan works problem generally and explains why they may not be practicable for budget-constrained CHIs. The chapter also explains why a solution is particularly urgent for immaterial ‘born-digital’ orphan works.

Keywords: copyright, orphan works,digital, cultural heritage institution

JEL Classification: K19, K39