New Report on Legal Strategies for Digitizing Orphan Works

We are excited today about the release of a significant report on legal strategies for libraries to enable open access to orphan works (copyrighted works for which owners cannot be identified or located), authored by UNC Law Library’s Dave Hansen. For all cultural heritage institutions, including law libraries like ours, orphan works pose a major challenge in digitizing and making available 20th Century materials.

Digitizers often shy away from orphan works because of the perceived risk of legal action should an owner of one of these works later appear and sue. As the Copyright Office has observed, “the risk of liability for copyright infringement, however remote, is enough to prompt them not the make use of [an orphan] work.”

Helping relieve that perception of risk, this report organizes and explains the large number of legal strategies and risk management strategies available to libraries and archives to move forward and make orphan works available on an open access basis.

Harvard Library sponsored and published the report and the Harvard Library Office for Scholarly Communications explains the project:

“The Orphan Works Project is an attempt to solve the legal complexities of the orphan works problem by identifying no-risk or low-risk ways to digitize and distribute orphan works under U.S. copyright law. The project’s goal is to help clear the way for U.S. universities, libraries, archives, museums, and other cultural institutions to digitize their orphan works and make the digital copies open access.

In the spring of 2015, the OSC commissioned research from David Hansen, Clinical Assistant Professor and Faculty Research Librarian at University of North Carolina School of Law. David is no stranger to the orphan works problem; he was one of primary facilitators for a project to create the Statement of Best Practices in Fair Use of Collections Containing Orphan Works for Libraries, Archives, and Other Memory Institutions, released in December 2014.

David completed the report, titled Digitizing Orphan Works: Legal Strategies to Reduce Risks for Open Access to Copyrighted Orphan Works, in the spring of 2016. A panel of experts then read the draft and commented on its significance, as well as its strengths and weaknesses in methodology and presentation. These expert comments ultimately helped improve the final edition.

Based in part on this report, Harvard Library is launching an initiative to free orphan works in its collections by building a carefully curated online list called the Orphan Works List (OWL). You can see the first stages of the OWL project here: http://bit.ly/ProjectOWL”