Orphan Works and Mass Digitization: Opportunities and Obstacles

In 2006, the US Copyright Office recommended legislation to allow unlicensed reuses of in-copyright works whose rights holders cannot be located through a reasonably diligent search to solve the "orphan works" problem. Contributing causes to this problem are a lessening of copyright formalities (such as notice of copyright claims on copies of works and voluntary registration of copyright claims) and several extensions of copyright terms. The European Commission has recently proposed a directive that would also open up greater access to orphan works in Europe.

Although orphan works legislation made some headway in Congress in the late 2000s, its progress was stalled for several reasons, including Google's announcement in the fall of 2008 of a settlement of a copyright infringement lawsuit brought by the Authors Guild and five trade publishers over Google's scanning of in-copyright books from the collections of major research libraries for purposes of indexing their contents and serving snippets in response to user search queries.

The Google Book settlement proposed an innovative way to provide greater access to orphan books. Under the settlement, Google would have been entitled to commercialize all out of print books in the Google Book corpus, including orphans, as long as it provided 63 per cent of the revenues to a new collecting society whose job would be to track down rights holders so these rights holders could collect money for Google's uses of their books.

In March 2011, Judge Chin rejected the proposed settlement on the ground that it was inconsistent with copyright rules that require that rights holders give permission before commercial uses are made of their works. In Judge Chin's view, solving the orphan work problem should be done by Congress, not through a class action settlement.

The Register of Copyrights has written to key members of Congress to indicate that the Office would be willing to consider how to address the orphan works problem now that the Google settlement has been rejected.

Given the failure of the Google Book settlement and the newly proposed orphan works directive in the EU, the time is ripe for renewed consideration about how best to solve the orphan works problem. Among the kinds of questions that may be addressed in the symposium are: Is legislation necessary to achieve a solution to the orphan works problem, or can fair use achieve some of the goal? Should orphan works legislation be aimed at creating an exception for reuses of orphan works, or should reusers of orphan works only be subject to more limited remedies if a rights holder later shows up? What other solutions should be considered? To what extent is ambiguity about who as between authors and publishers own ebook rights contributing to the orphan work problem? What factors should be considered in determining what constitutes "a diligent search"? Should every potential user of an orphan work have to do such a search, or can users rely on searches conducted by others?