The term orphan works is used to describe the situation where the owner of a copyrighted work cannot be identified and located by someone who wishes to make use of the work in a manner that requires permission of the copyright owner.
Even where the user has made a reasonably diligent effort to find the owner, the user faces uncertainty – because there is always a possibility, however remote, that a copyright owner could bring an infringement action after that use has begun. In such a situation, a productive and beneficial use of the work is forestalled – not because the copyright owner has asserted his exclusive rights in the work, or because the user and owner cannot agree on the terms of a license – but merely because the user cannot locate the owner.
Reasons for existence of orphan works
- The rights holder is unknown or cannot be traced.
- The work has no, or insufficient, information identifying the copyright owner and/or creator associated with it, which may be due to a number of reasons, such as format shifting.
- The original owner of copyright can no longer be located at the original address and there are no records of any new address.
- The copyright owner does not realize that they benefit from copyright ownership.
- The copyright ownership has been assigned to a new owner, and there is insufficient information available about the new owner’s name and/or location.
- The copyright owner has died and information about what happened to rights on his death is impossible to find.
- Where the copyright owner is a business, the business ceased to exist and it is impossible to find out what happened to the copyright which was one of the business assets.
- User generated content, works by amateur or local artists and works by artists using aliases were also mentioned as at risk of being Orphan Works.
- Even if the copyright holder is located and responds, potential users can still encounter problems. Some publishers have no record of having published older works.
- Furthermore, publishers are not always certain what rights they have. Some operate under the assumption that if a right is not explicitly granted to them in their contract with the author(s), then they do not have that right, for example, the right to make a digital version of the work. Other publishers operate under the opposite assumption that if a right is not explicitly denied, then they do have that right.
The extent of orphan works
In a 2009 survey in the United Kingdom, the average proportion of orphan works in collections across the UK’s public sector was measured at 5% to 10%, whilst in certain sectors (archives) this proportion was higher. The mid-range estimates from the survey put the total number of orphan works at a total of in excess of 13 million. Extrapolated across UK museums and galleries, the number of orphan works was conservatively estimated at 25 million, although the figure was likely to be much higher. (Responses from non-UK based respondents broadly corroborated the findings.)
Organizations spent on average less than half of one day tracing rights for each orphan work. Therefore it would take in the region of 6 million days effort to trace the rights holders for the 13 million works represented in the survey. In certain high profile projects, some organizations had spent large resources of time on chasing rights holders. However time and additional resources are also being used to educate the public and students and train (and remind) colleagues about the specifications of working with orphan works. At least 35% of organizations across all sectors, regardless of the size of their collections, do not have any specific resources in place to help deal with orphan works.
Carnegie Mellon University Libraries conducted a study in 1999-2001 to determine the feasibility of acquiring copyright permission to digitize and provide Web access to books in their collection. Overall, publishers of almost a fourth (22%) of the books could not be found. In general, the older the book, the more difficult it was to find the publisher. In addition, the older the book, the more likely it was that the book was out of print — neither generating revenue for the copyright owner nor easily accessible to potential readers.
Sometimes copyright to a book is owned by many people, for example, the introduction, translation, photographs and figures could each be owned by a different person. If a potential creator or user wants to use the entire book, copyright ownership of each part or item must be traced through time. In the feasibility study, 11 percent of the books in the initial sample were eliminated from the study as too complicated to pursue because of third-party copyright ownership. Over a third (36%) of the publishers that were successfully located did not respond to multiple letters of inquiry. Most (79%) of the books about which they did not respond were out of print.
A 2010 study in Europe reported the following:
- A conservative estimate of the number of orphan books as a percentage of in-copyright books across Europe puts the number at 3 million orphan books (13 % of the total number of in-copyright books). The older the books the higher the percentage of orphan works.
- Approximately 225 000 film works were categorized as orphan and could therefore not be used.
- A digitization project in the UK found that 95 % of newspapers from before 1912 are orphan. Also, a survey amongst museums in the UK found that the rights holders of 17 million photographs (that is 90% of the total collections of photographs of the museums) could not be traced.
In 2012, Paul Heald did a random sampling of 2500 new books sold by Amazon (not used books, or books sold by Amazon associates - only books directly in Amazon's warehouses). The biggest number of books is from the decade 2000-2010. That is to be expected; they're more recent, more popular. The numbers drop off really quickly for books in the 1990s, 1980s... to 1930s - where books start falling in the public domain. Then the numbers go up and up. There's as many books that Amazon is selling brand new from the 1900s to 1910 as from the 2000s to 2010. There's twice as many books from the 1850s being sold on Amazon as the 1950s.
Costs associated with orphan works
- In a study seeking permission to digitize and provide Web access to 278 fine and rare books, conducted by Carnegie Mellon University Libraries in 2003, the transaction cost was $78 per title for which permission was granted, as a very conservative estimate. (Not including the cost of consultations with university legal counsel, creating the database to track the work, managing the project, or intermittent labor costs invested in locating and finalizing negotiations with some authors and estates.)
- In addition to the transaction cost of seeking copyright permission, there could be permission fees levied by the copyright holder. The potential user has no way of knowing if a fee will be levied or, if so, what that fee might be. Many publishers who granted permission charged no fee, but some did.
- The fees were often accompanied by a limited license, meaning that access can be provided to the digitized book for a limited length of time (from two to seven years), after which it must be removed from the Web. Furthermore, over half of the publishers that granted permission in the two studies restricted access to their digitized books to members of the Carnegie Mellon community. Given that almost all of these books were out of print, this restriction seems in most cases to be a senseless hurtle to access to information.
- A project conducted by Carnegie Mellon’s Center for the Advancement of Applied Ethics in 1987-1989 sought permission to incorporate images of art works into educational software they were developing on art forgery. The project manager encountered great disparity in permission fees for use of the images, from no charge to $150 per image. Overall, the permission fees to use thirty images totaled $2,142 (converted to currency rates of 2002).
- In a study conducted by Wayne State University in 2000, the transaction cost of seeking permission to digitize 1000 articles for electronic reserves was $24,500. The total cost of acquiring copyright, including permission fees was $50,500 or $505 per article.
- The time it takes to identify, locate, and receive a response from copyright holders can be substantial. In the feasibility study, more than 60 percent of the publishers located did not respond to the first letter of inquiry, so a second or sometimes a third letter was sent. The average length of time to receive a response from a publisher was 101 days from the date of the initial letter for a response of "permission granted," and 124 days for a response of "permission denied." Three to four months is often too long for scholarly or educational purposes.
- While efforts to find the copyright holder are useful to show that any subsequent use of the work has been made in good faith, could aid defense if challenged and may occasionally yield contact details, they hold no legal certainty and present risk. Due diligence is also time consuming, resource intensive and may not be realistically practical for large-scale digitization activities.
Even if potential users absorb the transaction cost and the copyright holder grants permission, potential users might not be able to afford the permission fee, which means the effort they expended was fruitless and their valuable time wasted.
Because copyright terms are so long, in many cases extending well over a century, much of twentieth-century culture is still under copyright and unavailable. Much of this, in other words, is lost culture. No one is reprinting the books, screening the films, or playing the songs. In fact, it may not even be known who holds the copyright. Companies have gone out of business. Records are incomplete or absent. A film, for example, might have one copyright over the sound track, another over the movie footage, and another over the script. Not only are these works unavailable commercially, there is simply no way to find and contact the person who could agree to give permission to digitize the work or make it available in a new form.
Some works have a known owner, but they are still not interested re-issuing them. There are tens of thousands of books, movies and music pieces, which had a discrete success at the time, faded away from the top-seller list, and are now out of print and impossible to purchase. Many of these products are valuable artistic pieces that have a discrete but small demand, too small to be "profitable" for media giants. They may be an attractive product for small publishers or music companies, they may be valuable inputs for new artists and creators that could find in them inspiration for additional works, but they are not worth the effort or re-issuing for the likes of the Disney corporation. Worse, re-issuing a substantial portion of these titles would "crowd out" current products that the same media giants are heavily marketing. Monopolists maximize profits by restricting supply, elementary economics teaches us, and a simple way of restricting supply of artistic work is to make sure that not too many "equivalent" western movies, adventure novels, comic novels, symphonic pieces, and so on, are available for purchase at any given point in time.
What is rarely noted, orphan status may be most common for materials generated on the margins of society — by people whose names and presence were never recorded, sometimes because of persecution; or by informal or transient organizations, groups, and movements that never had an opportunity to create their own legacy. For this content — which includes some of the most important artifacts that a society is likely to produce, documenting both its struggles and those who speak without a recorded voice — formal interventions are unlikely to make a meaningful difference because there is so little ownership data to work with.
In an April, 2012 conference in the UC Berkeley Center for Law and Technology, the overall consensus, most succinctly aired by Brewster Kahle of the Internet Archive, is that the the problem is so pervasive and the barriers to a comprehensive resolution so high — while networked communications make sharing ever more straightforward — that institutions are increasingly prone to adopt a “Damn the torpedoes” approach. For these panelists, the prospect of new legislation attempting to facilitate use of material with dim rights status is often scarier than the status quo given political deadlock; further, uncertainty over the use of these materials is endemic but the risk is fairly low, in part because libraries, archives, and museums (LAMs) are respectful and conservative. At the same time, the cultural value is often tremendous.
Permanent loss of information
Some media deteriorates or is destroyed because copyrights prevent it from being copied onto other media and distributed. There are substantial costs involved in preserving information in its original medium until the copyright expires, and the devices used to retrieve the information may no longer exist by that time. An example would be wax phonograph cylinders from the early 20th century.
In another example, the preservation of deteriorating piano rolls (made out of paper, used in the player piano, an old automated musical instrument popular in the US in the early 20th century) is hampered by copyright laws.
- "Report on Orphan Works" (pdf), The Register of Copyrights of the United States of America, January 2006. Referenced 2012-06-07.
- Naomi Korn. "In from the Cold" (pdf), "An assessment of the scope of ‘Orphan Works’ and its impact on the delivery of services to the public", JISC, April 2009. Referenced 2012-06-07.
- Denise Troll Covey. "Re: Response to Notice of Inquiry about Orphan Works" (pdf), Carnegie Mellon University Libraries, March 22, 2005. Referenced 2012-06-07.
- Anna Vuopala. Assessment of the Orphan works issue and Costs for Rights Clearance (pdf), European Commission, May 2010. Referenced 2012-06-07.
- Paul Heald. Summary at: "Copyright stagnation", see the presentation: "Do Bad Things Happen When Works Fall into the Public Domain: The Market for Audiobooks" (video), March 16, 2012 at the Econ Dept University of Canterbury. Referenced 2012-04-25.
- James Boyle. "The public domain: enclosing the commons of the mind", 2008. p. 9. Referenced 2011-10-11.
- Michele Boldrin and David K. Levine. Against Intellectual Monopoly, Chapter 5, p. 117.
- Peter Brantley. "Serving a public that knows how to copy: orphan works and mass digitization", Publishers Weekly, April 14th, 2012. Referenced 2012-11-16. See also the conference page.
- Teachout, Terry (14 March 2013). "Copyright Protection That Serves to Destroy". Wall Street Journal. http://online.wsj.com/news/articles/SB10001424127887323826704578356282705139450.
- Jon maddog Hall. "CopyWrong!", Jul 12, 2010. Also see the commentary: "Copyright Finally Getting Around To Destroying Player Piano Music... One Century Late". Referenced 2011-10-23.
- "Orphan" works: informal deal done between MEPs and Council, The Information Daily, June 2012
- Film Preservation 1993: A Study of the Current State of American Film Preservation Report of the Librarian of Congress, June 1993
- Out of Fear, Colleges Lock Books and Images Away From Scholars by Marc Parry, May 2011
- Orphan Works, Center for the Study of the Public Domain
- Bibliographic Indeterminacy and the Scale of Problems and Opportunities of "Rights" in Digital Collection Building by John P. Wilkin, February 2011
- Orphan works at Wikipedia