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About the Author
Stan Katz teaches public and international affairs and directs the Center for Arts and Cultural Policy Studies at the Princeton University's Woodrow Wilson School. He is a past president of the American Council of Learned Societies, the Organization of American Historians, and the Society for Legal History. He comments frequently on policy issues relating to higher education, particularly liberal education, and on the humanities and social sciences, philanthropy, scholarly relations with Cuba, and the interplay of civil society, constitutionalism, and democracy. And on his beloved Cubs.
About Brainstorm
Brainstorm is The Chronicle Review's team of bloggers on ideas, culture, and the arts.
Gina Barreca
Mark Bauerlein Marc Bousquet Laurie Fendrich Dan Greenberg Stan Katz Stephen Joel Trachtenberg Bob Zemsky Recent PostsCan You Use Orphan Works? | Comment [9] SNAAP Judgments | Comment [6] Thanks, Karen | Comment [5] Symphony Orchestra as a Team Sport | Comment [2] Is the E-Book in Trouble? | Comment [2] Featured Articles By the Author
Can You Use Orphan Works?Most of you have never heard of an “orphan work.” Short of a flurry of interest in child orphanages promoted by some neoconservative politicians as a response to abortion-rights advocacy, the word “orphan” has an antique (well, 19th-century) ring to it. But it is a significant concept in the world of intellectual property, a shadowy world to most in the academic community even after all the controversy over copyright (and copyleft) in the recent past. An orphan work in this context means a copyrighted work (visual, text, sound) whose rightsholder (intellectual property owner) cannot be either identified or found. Most of us have in fact encountered the problem without knowing we were confronted with an “orphan.” The most usual context for a professor is when she wants to quote from a work for publication or copy a work for course assignment, but cannot identify (or locate) the person or company who owns the rights to the work. The question is who the parents of the orphan are, and/or where they are to be found? Orphan works have long been an issue, but of course the introduction of digital information has intensified the problem. We now have access to vastly greater amounts of information, and, much better means of identifying the information we want to use either for scholarship or teaching. But assuming that not all usage is covered by the “fair use” doctrine (a very large question I will avoid here), a good deal of the newly accessible information is hard to attribute to a rightsholder. How do we get permission to use it? If you are a copyright hardliner, you will say that you simply cannot use such orphaned material. Tan pis. A freer spirit will say that so long as you have made a reasonable effort to identify the rightsholder, you are free to use the material without permission. But the for the last decade or so there have been efforts to legislate a middle position, usually involving the establishment of a registry of orphan works and mechanisms for payment of reasonable fees for their use. Bills have recently been introduced in both the House and the Senate to provide such solutions, and they are being hotly contested. The rightsholder communities (for different sorts of rightsholders have very different attitudes) favor the imposition of tougher burdens on use and higher payments, while user communities (also diverse) favor a more relaxed mechanism that will result in greater and cheaper access to orphan works. Hearings have very recently been held in the House, and have generated intense concern in different communities. At a recent panel I chaired on newspaper op-ed art, a talented illustrator for The New York Times and other papers told the crowd that all visual artists were about to get ripped off, since the House bill would destroy all property rights in illustrations. Well, not in my view. But on the other hand one of the most prominent library commentators on IP issues has warned her readers that the provisions the visual artists have introduced into the House bill are a “poison pill” that should make the bill unacceptable to the library community. My own guess is that we will not get any legislation before the Congress descends into election year paralysis, but the issue will not go away. And it is one that any academic who cares both about fairness in copyright and the capacity to use literary and artistic creations ought to inform himself about. This issue is too important to leave solely either to visual artists or library lawyers. Posted at 03:37:27 PM on May 7, 2008 | All postings by Stan KatzComments |
Since users already have to go through a process of searching for the owner of copyrighted material just to engage in a proper risk analysis prior to actually using the material, it only makes sense that there should be some legislation to ensure that “good faith” efforts are rewarded with a reduction in liability, particularly statutory damages, which can be substantial in relation to the value of the use one wants to make of the material. Thus, right now, the risk is almost always going to be very high, deterring most uses, to the detriment of scholarship and teaching. The problem of “orphan works,” which has always been with us to some degree, was significantly increased by the changes in copyright law that came into effect in 1978 and no longer required registration as a condition for copyright protection—hence the need now for a corrective in the other direction.
— Sandy Thatcher · May 8, 08:21 AM · #
If the legislation mentioed above is designed to address the issue of works for which the rightsholder cannot be found, to whom would the payments go?
— EB · May 8, 08:58 AM · #
While it seems fair to allow using “orphaned” work for academic and educational purposes, There is no excuses to allow it for commercial use.
If Coca-cola likes images and cannot locate owner they has enough money to hire photographer and make new images.
— Lev Olkha · May 8, 07:46 PM · #
No payments are made unless and until a copyright owner comes forward to make a claim. Then a fee for past use, at industry standard rates, is paid, and payment for any future use is negotiated with the newly identified owner. Why not allow “commercial” use? The owner is not deprived of any payment, and a user cannot always find or create a suitable replacement, whether the work is text or image.
— Sandy Thatcher · May 9, 08:25 AM · #
The owner is indeed deprived of a payment if he is not aware of the infringement- and once a work is labeled as “orphan” infringements will multiply at an alarming rate.The way the bill is set up, even works registered and with their owners identified can be improperly used if the search engine on the registration list- with a failure rate of %10- doesn’t pick up the owner when a search is made. This bill is an abomination for all creative people.
— RM · May 9, 09:22 AM · #
If artists and other content owners are truly concerned about losing deserved revenue, then it seems clear that they should make it clear that a work is theirs and easy to locate them. This bill is not about ripping off visual artists. It is about creating a fair limitation on liability for uses when owners really can’t be found. Becoming easy to find will generate more revenue, whether this bill passes or not.
— drl · May 9, 11:31 AM · #
Tant pis, not tan pis (unless of course you mean tan piss). Perhaps the Chronicle could hire one or two out-of-work PhDs as copy editors?
— hippokleides · May 9, 01:19 PM · #
Let’s see now: academic context, not a private research company; students in face-to-face instruction, not co-employees at a conference meeting in a corporation.
Now, what was the question?
Read and cite extensively in a term paper? – Sure.
Same thing on a Website? – Not unless it’s on a server accessible only to students/faculty involved.
Make a complete photocopy or electronic pdf? – No.
Use extensive quotes in an academic book for profit? – Possibly. But maybe not.
The problem, as I see it, is that, in general, academics (including many librarians) have only foggy notions of “fair use”. One cannot teach “fair use” unless one has researched it. I have lost count of how many times I have had to insist that colleagues acquaint themselves with and respect basic fair use rules. (The many violations of “public performance” in campus film festivals, for example, boggle the mind.)
Therefore, far from being an “aside” (as the blog host would have it), “fair use” is at the heart of the matter of all educational responsibility. In the academic context, the “orphan work” is only problematic when one starts to try to make money from its use.
— Anti-hypocrisy advocate · May 10, 03:38 PM · #
Just a little post-script:
Yes, students often just “hate” it when they have to actually go to a library in order to consult a book or a file of photographs or listen to a recording. And so, professors arrange to have “course-packs” made where the library gets the permissions to digitize the work and make it available to the students “on virtual reserve”.
Well, SURPRISE! Some libraries in state universities have to keep count of how many people actually cross the threshold and enter the library. And such “traditional” original copy reserve items might actually help keep open the doors of the campus library.
This does, of course, create a problem for the exclusively “distance” learning course which is structured to depend upon totally public resources like the World Wide Web. But whenever the “entire” work is not used or jeopardized, the university has the closed server option for “delivery”.
Yes, life would be a lot simpler if we could just declare as many works as possible “in the public domain” — but in a society (if not a world) based on “property”, such declarations certainly do seem to be a kind of “socialist” move that would be deplored in many if not most other material contexts.
It’s all well and good for academics to worry about the access afforded to persons in the non-academic context. But the courts have been pretty clear about this, have they not? Prosecuting a researcher in a private corporation for doing exactly what a professor in a university could do with impunity in the use of an academic research article.
All of this “private” stuff is, of course, of great interest to universities that “contract out” teaching services (as many seem to be or be planning to do, especially in the context of foreign satellite locations). Such “contracting out” likely does NOT carry with it the the same “fair use” exemptions, does it? These are indeed the trade-offs of the increasingly corporatized university.
So, now we know what the fuss in academia – and the surprising willingness to undermine artistic property rights – is really all about, don’t we?
Convenience and profit — at anyone/everyone else’s expense.
— Anti-hypocrisy advocate · May 11, 12:13 PM · #