Homes for copyright orphans

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The Copyright Office is proposing legislation that would make it easier for libraries, universities and archives, including the Library of Congress, to digitize collections that contain 'orphan works.'

These orphans are the millions of unidentified but copyright works that are in danger of slipping into obscurity because their owners cannot be found.

'Our primary goal is to construct a system that more often brings owners and users together,' but still allows use of the work if the owner cannot be found, said Jule Sigall, the Copyright Office's associate register for policy and international affairs.

Orphan works can include anything from untitled photos, artwork from old magazine ads, out-of-print books, antique postcards and obsolete computer programs. Orphans have always been around, but digital technology has made finding a solution to the problem more pressing. That's because the Internet has increased exposure to and demand for these works, Sigall said.

In January 2005 senators Orrin Hatch (R-Utah) and Patrick Leahy (D-Vt.) asked the Copyright Office to study the problem. After a year of roundtables and comments from stakeholders, the office recommended amending the copyright law to allow use of orphan works if the user is unable to locate the owner after making a reasonable search. If the owner eventually turns up, his remedies would be limited to a reasonable compensation, without the threat of punitive damages or attorneys' fees to discourage the user.

Although the law would apply to any users, universities, libraries and archives have a large stake in the issue because of programs making materials available online. The Library of Congress, for instance, has made millions of maps, photos, recordings and other materials available on its Web site at But digitizing and posting copyright material requires the copyright holder's permission, which is not always easy to obtain.

'The collections contain a massive amount of orphan works,' Prue Adler, associate executive director for the Association of Research Libraries, said at a recent seminar hosted by the Progress and Freedom Foundation. 'This would be an enormous benefit to making these works publicly available.'

The House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property held hearings on the issue in March and Sigall said he expects that legislation based on the Copyright Office's recommendations will be offered soon.

Not everyone is happy with the proposed solution, however.

'This is not a situation where one size fits all,' said attorney Steven Metalitz, who represents photographers in this issue.

Metalitz said the proposed solution would too strictly limit the options of artists who find their works used without permission. He advised waiting until digital search technology catches up with the problem.

'Technology is going to help,' he said, as better tools for searching digital images are developed that will make it easier to identify the owner of a photo's copyright.

About the Author

William Jackson is a Maryland-based freelance writer.


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