Solving the Orphan Works Problem for the United States

Abstract

Over the last decade, the problem of orphan works—i.e., copyrighted works whose owners cannot be located by a reasonably diligent search—has come sharply into focus as libraries, archives and other large repositories of copyrighted works have sought to digitize and make available their collections online. Combined with new technology that has changed the way that copyrighted works are created and the way that consumers expect to access and use copyrighted works, the orphan works problem has grown into a significant and, as former Register of Copyrights Marybeth Peters observed, a “pervasive” problem. Although this problem is certainly not limited to digital libraries, it has proven especially challenging for these organizations because they hold diverse collections that include millions of books, articles, letters, photographs, home movies, films and other types of works. Many items come with a complex, unknown and often unknowable history of copyright ownership. Because U.S. copyright law provides for both strong injunctive relief and monetary damages (in the form of statutory damages of up to $150,000 per work infringed), organizations that cannot obtain permission often do not make their collections available at all. Large projects, such as Google Book Search and the HathiTrust digital library, which aim in part to address orphan works on a larger scale, have been drawn into litigation.