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Empowering Media That Matters

Fair Use and Orphan Works

December 2014 Coordinating Organizations:

The Program on Information Justice and Intellectual Property,

Center for Media Social Impact ,

The Berkeley Digital Library Copyright Project,

Co-Facilitated by:

Patricia Aufderheide ,

David R. Hansen ,

Meredith Jacob ,

Peter Jaszi ,

Jennifer M. Urban ,

With funding from:

The Alfred P. Sloan Foundation


Libraries, archives, institutional custodians of record and other non-profit organizations that preserve memory serve as stewards for a large share of the world’s cultural, historical, and scientific record. While performing many distinctive functions and often working within larger organizations, the professionals who dedicate themselves to preserving memory also share common purposes and challenges. In this document, we refer to them collectively as “memory institution professionals.”

These professionals’ individual objectives derive from the shared mission of their institutions. Preserving a treasury of primary resources consisting primarily of unpublished documents, ephemera, and other unique items, and providing access to it for research, scholarship, and the advancement of knowledge are core features of that mission. When these resources are both securely housed and widely available, an important social interest in facilitating researchers’ and the broader public’s understanding of the knowledge contained in these collections is fulfilled. Digital technology gives memory institutions an opportunity to safely store their collections in ways that also create opportunities to give ever-greater numbers of people the benefit of them. By this means, the institutional objectives of the organizations in which memory collections are located (from larger research libraries to small specialized archives) are also advanced.

Some collections held by memory institutions consist primarily of items old enough that copyright presents few practical challenges. Other collections may be sufficiently homogenous, and closely enough associated with a particular source, that it makes good sense to seek rights clearances before proceeding to digitize or make them accessible. A number of collections, however, lack such homogeneity, and include items from many sources. In particular, many collections include numerous “orphan” works, which are difficult or impossible to associate with active rightsholders who might give permission for their use. Some rightsholders may have been corporate entities that have ceased to exist. Other rightsholders may once have been locatable, but have become difficult or impossible to find today. Some likely did not create works with copyright in mind, and had no reason to remain available for inquiries.

This document considers the role that the doctrine of fair use may play in helping to resolve the copyright dilemmas that dealing with such collections can present. It addresses specifically how libraries, archives, museums, and other memory institutions can proceed with respect to collections that, based on professionals’ expertise, clearly appear to contain significant numbers of orphan works.

Why This Document Was Created

This document responds to memory institution professionals’ concerns about copyright liability in digitizing and providing digital access to collections that are believed to contain orphan works in significant numbers.

Memory institution professionals worry about orphan works because they fear the potential liability that a copyright infringement lawsuit could bring. The problem has become more significant as copyright has been extended over the last several decades while formalities of registration have been relaxed. Today, most works created in the last century are presumed copyrighted, and most copyright holders are difficult to find.

Memory institution professionals face special challenges when seeking to reuse orphan works. Archival collections, for example, often contain unpublished materials, such as historical and family photographs or notebooks, that have no markings of ownership, are not registered with the Copyright Office, and are not identified in any publicly-searchable database. The identifying information that is available can be inaccurate, incomplete, or outdated. This problem is compounded by the fact that, for many works commonly found in memory collections, such as scrapbooks and photographs, authors were neither motivated by nor even aware of the copyright protection that automatically attached to their creations. The likelihood of those authors maintaining contact with their works is small. Further complicating the situation are limitations on institutional resources that make comprehensive, item-by-item clearance requests prohibitive, even when theoretically feasible.

Memory institution professionals commonly manage collections containing materials that are, practically speaking, impossible to identify and seek copyright permission for, item by item. If they fail to address copyright clearance issues, they could compromise their institutions’ public missions. Nevertheless, faithful representation of a collection in its entirety could be critical to fulfilling an institution’s missions to preserve the past and to make research materials available, including online. Even in those situations where mission may be served by active selection and arrangement of materials, avoidance of copyright issues should not be the primary consideration influencing institutional choices about inclusion and presentation.

In the United States in the last decade, the orphan works problem has generated proposed legislation and several Copyright Office studies. But none of those bills passed and there has been no further legislative relief or guidance.

Over the same period, individual archivists and professional organizations, such as the Society of American Archivists, have documented ways to locate rightsholders of copyrighted materials, focusing on capturing a complete set of options for investigating the legal status of individual works. However, until now there have been no clear statements about what librarians and archivists consider professionally and practically appropriate practices regarding orphan works embedded in memory institution collections. Neither has there been any documentation of this community’s views on how fair use applies to the management of such collections.

How This Document Was Created

To address this need, the co-facilitators of this document undertook a multi-stage process to help the community discover and express its collective views on the issue of orphan works and how to address them.

In September 2012, the co-facilitators convened a workshop in Washington, D.C. to discuss the orphan works problem and how to address it. The workshop brought together more than 30 librarians, archivists, and other memory institution professionals from a wide range of organizations. Both large and small institutions participated, including academic and governmental libraries and archives, public libraries, private museums and archives, local historical societies, web archiving projects, and the Digital Public Library of America, along with representatives of organizations that support the work of those institutions, such as the Association of Research Libraries and the American Library Association. Participants came from a range of geographic locations throughout the United States.

The views of the workshop group were combined with the results of several in-depth follow-up interviews and documented in the Report on Orphan Works: Challenges for Libraries, Archives, and Other Memory Institutions. A primary need identified in the Report was to develop

[B]est practices to help guide and empower digitizing institutions that seek to make good faith efforts in using orphan works. This should include best practices for topics including identifying when a search is desirable, the form that a search should take in various circumstances, the role of ancillary considerations (including privacy) in designing any search, and approaches to seeking permissions for use when a search has indicated a possible copyright owner. Discount Low Shipping Fee Ruffled Flare Raw Hem Jeans Blue Marques Almeida Buy Cheap Release Dates Clearance Limited Edition Clearance Manchester Great Sale wLkpZ2

With that goal in mind, project members undertook a series of intensive deliberative group meetings, holding ten half-day sessions in nine U.S. cities. The discussion groups were primarily composed of special collections librarians and archivists. The groups included 72 memory institution professionals whose primary job was to acquire, maintain, and provide access to archival and special collection materials. An additional 20 served a similar role, but with a focus almost entirely on the digital environment. The groups also included 10 memory institution professionals who served in management roles where they encounter copyright and orphan works challenges, 10 who have special experience providing copyright assessment and advice for library and archives collections, and 17 who serve a variety of roles, often within smaller organizations. A large number of these participants—79 in total—worked with collections at university libraries, though the size, resources, and type of collections held by those institutions varied widely. Others included 9 participants from state and federal libraries and archives, 11 participants from museums, 19 participants from independent (typically small) historical societies, archives, and libraries, and 11 participants from public libraries.

While these discussions began with a focus on orphan works as such, deliberative groups quickly made clear that the nature of most digitization projects—especially those on a larger scale—meant that librarians and archivists had little practical way of addressing individual orphan works separately from the collections of which they are a part. As a result, the conversation in most deliberative group sessions soon shifted to how fair use supports the digitization of collections that are believed to contain orphan works.

Thus, while the resulting statement offers guidance to memory institution professionals in making decisions about orphan works, it also considers mass digitization projects more generally—just as did the participants in our meetings.

Overall, the deliberative group conversations revealed a deep understanding of how institutional mission, the nature of the collection, and the potential for harm to unidentified stakeholders all affect a fair use determination. The groups’ consensus-based, middle-ground understanding of how the fair use doctrine applies is documented below in these best practices.

To ensure that the application of fair use reflected in this statement falls within the bounds of reason and precedent, an independent legal advisory panel of recognized copyright experts has reviewed this document. This should not, however, be construed as representing their legal advice. Rather, the document represents the voice of the community of memory institution professionals itself.

What This Is

This statement of best practices represents the carefully derived community consensus view that emerged from more than a year of discussions. It articulates two broad best practices principles, and, accompanying the second, a range of related qualifications that describe practices supported by fair use that promote the mission of memory institution professionals who manage collections that are believed to contain orphan works. The principles should not be read without the associated qualifying language.

The best practices are stated in general terms so that any institution can take these best practices and apply them to its own circumstances, as a tool to help inform its own legal and risk analyses.

What This Isn't

This statement does not describe the limits of fair use in memory institutions, but articulates how professionals understand the doctrine to apply in a limited number of recurrent situations that they face in digitizing collections that include orphan works. Institutions may be able to make persuasive arguments for fair use in circumstances that go beyond the shared norms expressed here, just as they may have good reasons for choosing policies that do not take full advantage of these consensus principles.

This statement was not negotiated with rightsholders that do not have as their mission to collect, preserve, and provide access to collections of material.

This statement lays out the reasoning by which memory institution professionals believe they can exercise their fair use rights; it does not present rules or bright-line tests. Rules and bright-line tests ignore the fact that, as is true of all rights that enable freedom of expression, the effective exercise of fair use requires both an understanding of the particular context and consistent reasoning from instance to instance.

Nor does this statement suggest that the exercise of fair use rights is an obligation of memory institutions. Relationships with donors, extraordinary privacy concerns related to some collections, and each institution’s own tolerance for risk are just some of the factors that may lead some to decide not to exercise fair use rights in certain situations.

This statement is not a guide to using material that people give the public permission to use, such as works covered by Creative Commons licenses. While fair use applies to such works, anyone may use those works in ways their owners authorize, in addition to ways permitted by the fair use doctrine.

Similarly, it is not a guide to the use of works that are in the public domain; copyright does not limit the use of these works, including uses that otherwise would far exceed the bounds of fair use. Because many library and archives digitization projects may include early 20th-century works that are potentially in the public domain, we repeat a recommendation made in the Report on Orphan Works Challenges for the community to develop educational materials to help librarians and archivists make public domain status determinations.

The scope of this document: Although the principles and best practices articulated in this document might logically be extended to collections that contain copyrighted material more generally, this document, like the discussions that led up to it, is specifically intended to guide activities with collections that are believed to contain a significant number of orphan works. Orphan works have several distinct characteristics that can be relevant to the fair use analysis, as discussed below. Most importantly, they are, by definition, not active in the market and may not have been prepared for market purposes in the first place. This increases the social value of digitizing them while simultaneously limiting any resulting economic harm to rightsholders.

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