By Authors Alliance co-founder Pamela Samuelson.
During the Authors Alliance launch at the Internet Archive, I talked about why the problem of orphan works is one of the pressing concerns the Authors Alliance seeks to address with its Principles and Proposals for Copyright Reform. Many of us, including academics, biographers, writers of historical fiction, and documentary filmmakers, come across many documents relevant to our research projects that we want to include in our works.
Sometimes we can tell that the documents are in the public domain, and sometimes we can easily track down the owners of in-copyright works and ask for permission. But many times, especially with older documents, it is unclear who the author is, how to track him or her down, or who else might have rights in the work.
Confusion about who is the author or owner of the rights is, of course, not an excuse to ignore copyright interests. There is general consensus that a prospective reuser should have to conduct a reasonably diligent search for the copyright owner, but copyright should not unreasonably impede reuse of the work if no owner can be found.
Here is an especially poignant example of an orphan work. Anyone who was writing a history of the civil rights movement in the 1960s or a biography of one of its key leaders, James Forman, would likely want to use this photograph:
This photograph of Forman, who was the Executive Secretary of the Student Nonviolent Coordinating Committee (SNCC), was taken in a jail in Alabama after a Freedom March protest in the 1960s during which Forman was arrested. SNCC activists managed to smuggle a camera into the jail. After one of Forman’s fellow prisoners took the photo, the camera was smuggled back out of jail and the photo was printed. It is impossible to know who took this photo, so it is a true orphan.
The photograph is one of hundreds of documents that former SNCC activists want to digitize them and post on the Internet. The availability of this treasure trove of information would be of great benefit to amateur and professional researchers. None of the documents was created with copyright incentives in mind, but all are automatically protected by this law. Fortunately, SNCC archivists recognized that there were copyright issues posed by their digitization plan. With the help of a law and technology clinic at Berkeley Law School, the archivists of the SNCC documents were able to make reasonable judgments about how to deal with the copyright issues, including relying in some cases on fair use, a doctrine of U.S. copyright law that provides a balancing mechanism for weighing the interests of copyright owners and the interests of the public.
The Forman photograph is only one small example of the orphan work problem that many researchers face. We’re also very aware that even our own works are susceptible to being orphaned. We want to ensure that readers and would-be reusers of our works can find us (or the copyright owner, as the case may be) in order to more easily ask for permission. We know that fewer works will be orphans if we can improve information about who owns what rights in which works.
As authors who write to be read, we believe that sensible copyright reform can help both to reduce the number of orphans and unshackle those that persist despite our best efforts. We welcome the U.S. Copyright Office initiative to address the orphan works problem as part of the ongoing copyright reform effort.
To learn more about the orphan works problem and possible solutions, see: