YourABA May 2013 Masthead

Panel looks at proposed solutions
to ‘orphan’ works

Duke University Libraries in Durham, N.C., has made a number of digitized “special” collections available online to the Duke community as well as the public. One collection documents the Caribbean Sea Migration of refugees from Cuba, Haiti and the Dominican Republic between 1965 and 1996.

The migration exhibit is a gripping mix of pictures and text capturing the human quest for freedom. But the digital collection, like many housed at Duke and countless other facilities across the country, presents archivists with some thorny legal problems. They contain a number of “orphan” works — works that are still protected by copyright, but the right holders cannot be located.

The ABA Section on Intellectual Property Law and the ABA Center for Professional Development recently co-sponsored a Continuing Legal Education program, “The Orphan Works Problem: Recent Developments, Proposed Legislation and Alternative Solutions. The 90-minute CLE looked at developments affecting “orphan” works, proposed past federal legislation and possible solutions to what moderator Jennifer M. Urban, a law professor at the University of California Berkeley School of Law, called the “vexing issue of orphan works.”

Examples of “orphan” works are books, newspaper or magazine articles, images and films protected by copyright but for which the copyright holders cannot be located to gain use permission. Frequently, these works are found in library and cultural collections. The issue is growing as more copyright material is produced and more items get digitized.

A legal challenge could arise when a user mounts a good-faith effort to identify either the creator of the copyrighted work or the rights holder and comes up empty. If the rights holder emerges after use, the user could be liable for civil damages for unauthorized use of the material.

“For true orphan works, no one is harmed by the use,” said Kevin Smith, director, Copyright and Scholarly Communication, at Duke. “The solution we are talking about is really solutions to the problems of mistakes.”

Another panelist, Karyn Temple Clagget, senior counsel for Policy and International Affairs at the U.S. Copyright Office at the Library of Congress, said one problem is U.S. copyright law fails to provide a formal legal definition of “orphan” works. Another emerging legal issue is what constitutes a reasonably diligent search.

The last time Congress tried to address “orphan” works legislation was in 2008, but no final action was taken. The Copyright Office is now reviewing the issue and could make recommendations to Congress on what additional legislative, regulatory or voluntary solutions should be considered.

In Europe, Marco Giorello, legal officer for the European Commission in Brussels, said the European Union is now seeking to devise a solution that works across borders in all 27 jurisdictions. The hope is that the member states will approve the international legislation by the end of 2014. He also said the European community was moving toward a registry of “orphan” works.

The idea of a similar U.S. registry is gaining some support. Smith of Duke suggested that a voluntary registry would have merit, especially for images. He could foresee filing images in a database that could be searched by metadata — certain basic characteristics of the image.

But June M. Besek, executive director of the Kernochan Center for Law, Media and Arts at Columbia Law School in New York, questioned how such a federal registry would work. “How do you create registries and fund them?” she asked, while raising several other questions to that idea.

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