Hope for Orphans?!

By SCOTT CARLSON  From the issue dated July 29, 2005 Chronicle of Higher Education

 The law to illustrate an article for an academic journal -- by including an illustration without obtaining permission to do so from its copyright holder may have remedies in the near future. With no apparent owner to approve publication, images may be stuck in copyright limbo, a prime example of what legal experts call an "orphan work." Though an academic journal may say, "this risk was minimal." There will be discomfort over the choice whether to use the work or not to illustrate the point..

 Many scholars, archivists, and librarians have stories like this. Orphan works have led to complications not only in publishing but also in digitizing projects, preservation efforts, and the creation of works like film and video documentaries.

 This week, at the urging of prominent legal scholars, academic-library organizations, technology companies such as Google and Microsoft, and many other interested parties, the U.S. Copyright Office is holding a series of hearings to determine whether copyright law should change to allow for more liberal use of orphan works.

 Scholars and others weighed in earlier this year, filing comments on the issue with the copyright office in anticipation of the hearings. The American Historical Association, for example, noted that orphan works had become a problem for scholars, "hampering the historian's ability to work with the raw materials of history."

 The comments reveal that even frequent adversaries on copyright issues agree that changes are needed in how the law governs orphan works. But few people agree on what those changes should be.

 Many issues surrounding orphan works -- how they should be defined, vetted, and used, and how much a user should pay if a work's "parent" turns up later -- remain subject to vigorous debate, with various groups looking out for their interests. The music-licensing organizations Broadcast Music Inc. and Ascap have proposed that any orphan-works exemptions should not include music. Other parties have suggested that changes in law should apply only to domestically published works, while foreign works and unpublished works should remain strictly protected. (Foreign works must be protected to avoid violating international agreements, some lawyers say, and unpublished works may need to be off limits to protect the privacy of owners who might have preferred that the works remain unpublished.)

 And some groups -- in particular visual artists like photographers and illustrators -- strongly oppose any loosening of the law for orphan works, seeing it as an assault on copyright that will deprive artists and creators of their due.

 Many Ways to Orphan

 An orphan work can be a film, a book, a private letter, a painting, or any other creative work covered by copyright, in which protection, through the complexity of the law, can extend as far back as 1923. A work can become orphaned in any number of ways: For example, an artist can die, and the heirs may not know about the artist's copyrighted work. A company that published a novel might go out of business or fall into the hands of another company that does not maintain publication records. It is particularly hard to figure out who took a photograph, unless the name of the photographer or studio is cited somewhere on the print.

 Works like those add up to a great deal of published material, according to studies conducted by research libraries. Five years ago Carnegie Mellon University's library studied a sample of about 270 items from its holdings; librarians could not find the owners of 22 percent of the works.

 In response to the U.S. Copyright Office's request for comments, Cornell University librarians added up the money and time spent clearing copyright on 343 monographs for a digital archive of literature on agriculture. Although the library has spent $50,000 and months of staff time calling publishers, authors, and authors' heirs, it has not been able to identify the owners of 58 percent of the monographs.

 "In 47 cases we were denied permission, and this was primarily because the people we contacted were unsure whether they could authorize the reproduction or not," says Peter B. Hirtle, who monitors intellectual-property issues for Cornell's libraries. "Copyright is supposed to advance the sciences and arts, and this is copyright becoming an impediment to the sciences and arts."

 Restrictions on using orphan works, often imposed by risk-averse lawyers at colleges and museums, affect scholarly work in ways large and small.

 Wendy Katz, an assistant professor of art history at the University of Nebraska at Lincoln, had trouble finding the copyright owner of a painting she wanted to reproduce in a book. The museum that provided a picture of the painting could offer no help, and her search led only to another scholar who had published the painting without permission, after also failing to find the copyright owner.

 Ms. Katz, too, eventually published the painting, hoping that the owner would not turn up. The decision bothers her, as she is normally a supporter of copyright for artists, but she believes that scholars should get special consideration in cases like these.

 "I don't see publication harming the value of the objects," she says. "I'm not making any money from it, and the press is breaking even, if they are lucky."

 In its comments to the copyright office, the Center for the Study of the Public Domain, at Duke Law School, said whole generations of movies are at risk because of their orphan status. Film deteriorates more rapidly than other media, such as paper. Digitization projects could help preserve the films, but the center notes that donors are not inclined to pay for the costly digitization of movies that the public cannot see because of copyright restrictions.

 Model Proposal

 Those are the sorts of problems that Peter Andrew Jaszi, a law professor at American University, heard about at copyright conferences and meetings several years ago, before abandoned works were commonly known as "orphans." He encouraged his students at the law school's Glushko-Samuelson Intellectual Property Law Clinic to propose a solution.

 The clinic's response, filed with the copyright office this year, has come to be seen by many libraries and publishers as a model solution. Its basic points: An orphan work is any for which an owner cannot be found, regardless of how recently it was published or whether it was published at all. People should be able to use an apparently orphan work after "reasonable effort" to search for its owner, but the law should not spell out what that effort entails. If an owner turns up after a supposedly orphan work has been used, the owner should be able to collect a small amount -- from $100 to $500 -- but not obtain statutory damages, attorneys' fees, or injunctions.

 The Glushko-Samuelson proposal does not advocate establishing a registry of orphan works, but some copyright experts do. Lawrence Lessig, a Stanford University law professor, recommends requiring authors, musicians, and others to register their work within 25 years of publication. Software developers would get less time -- five years -- because software becomes obsolete much more quickly. A search of the government-supported registry would be enough to determine whether or not a work was an orphan.

 Proposals by other organizations diverge wildly, but most of them disagree on two main points: how an orphan work should be defined, and what a user should pay if an owner comes along after a work has been used.

 Of the two, the issue of payment is simpler.

 Some organizations, such as museums, have recommended paying nothing at all. The J. Paul Getty Trust, the Metropolitan Museum of Art, and the Solomon R. Guggenheim Foundation have suggested a "safe harbor" of five years after the use of an orphan work, beyond which point the owner of a work would not receive payment, although he or she could negotiate for its continued use.