The Orphan Age

Could this be the beginning of the end for the age of orphan works – published works for which the author, publisher, or other copyright holder cannot be found? 

orphansLast month the University of California and Cornell, Duke, Emory, and Johns Hopkins announced that they would begin making the digital versions of their orphan works digitally available in full text through the HathiTrust Digital Library for use by current students, faculty, researchers, and staff at their own institutions.  The universities of Michigan, Wisconsin, and Florida already are members of the Orphan Works Project, which uses a public process to attempt to find the rights holders of previously identified suspected orphan works. 

Examples of suspected orphan works include:

  • Last Train from Atlanta [the copyright holder must have been on it.]
  • Confusion: A Novel [the rights holder may be wandering about dazed and confused]
  • Over Their Dead Bodies: Yankee Epitaphs & History [damn Yankees]
  • The Octopus of Paris [how could an octopus lose its grip on its rights?]

Note that this new initiative will not make these suspected orphan works available to the general public, only to people currently affiliated with these institutions.  It’s unclear to me if this access will be made available only to members of the universities that hold at least one print copy of the title in question, or to anyone affiliated with the mini-consortium (UMich, UW-Madison, Florida, Duke, Berkeley, etc.), or with the entire HathiTrust Consortium, which has over 50 members.  I submitted a webform question on the HathiTrust website, but haven’t received a response yet.

Here are a few thoughts about this situation:

  • The name “orphan work” may be an unequivocal misnomer.  An orphan is a minor whose parents have died.  Authors certainly die, but copyrights, as part of the author’s estate, always pass down to some legal entity, even if the author dies intestate.  If this is true. there never are orphan works, just difficult to identify and find parents (i.e., rights holders). 
  • Some authors are not happy about this development.  On September 12th the Authors Guild, other author groups,  and even some individual authors announced that they have filed suit against the U. of Michigan, the HathiTrust, and other participating universities in this endeavor. 
  • Perhaps the key issue here is not what will happen to works we used to call orphans as they are digitized, but what happens when works are digitized or, more generally, converted in any way.  It is difficult to predict how the courts will decide this issue, but it would be a better world if libraries and individuals who have invested in content in some way had the right to convert content as they see fit to meet their needs.  Conversion rights should reside with the users. 

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