How Fair Use Can Help Solve the Orphan Works Problem (Draft Version)
Jennifer M. Urban
University of California, Berkeley – School of Law
Berkeley Technology Law Journal, Vol. 27, 2012
UC Berkeley Public Law Research Paper
Many works that libraries, archives, and historical societies, among others, would like to digitize and make available online are “orphan works,” that is, works for which the copyright holder either is unknown or cannot be located after a diligent search. Encountering orphan works can be stymieing because the lack of an owner means that there is no way to obtain permission to use them. While Congress nearly passed legislation to deal with the orphan works problem in 2008, its ultimate failure to enact this bill has left those who possess orphan works in limbo. Because of the risk of high statutory damages if an owner later shows up, nonprofit libraries and similar institutions have been reluctant to digitize these works and offer them to the public. The orphan status of these works thus creates a barrier to access to important cultural and historical information despite recent improvements in digitization technologies that could bring these works out of obscurity and make them much more widely useful. As such, there is international consensus that the “orphan works problem” must be addressed.
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