The Chronicle for Higher Education reports on a major casualty to the copyright and orphan works confusion: Academia.  Colleges with incredible treasure-troves of digital material, mostly photographs and recordings, but books as well, are afraid of making those materials available to scholars.

Wide online access is curtailed, in part because they contain “orphan works,” whose copyright owners can’t be found. And the institutions that hold the collections—a consortium of major research libraries and the University of California campuses at San Diego and Los Angeles—must deal with legal uncertainty in deciding how to share the works. A university that goes too far could end up facing a copyright-infringement lawsuit.

The “could” in the quote above isn’t just imagination; as the article indicates, UCLA, which presently hosts a library of 8.7 million digital volumes, a trove of 100,000 ocean-science photos and an archive of 57,000 Mexican-music recordings, is involved in a copyright-infringement lawsuit over its use of streaming-video technology.

The problem:

In 1978, the United States changed the law to make copyright automatic as soon as a work was fixed in tangible form. Protection was also extended to works that had not been publicly distributed, like diaries, pictures, and private papers. And the requirement to file for renewal was essentially eliminated. In 1989, to satisfy an international treaty, the U.S. nixed the notice requirement.

Bottom line: Lots of works that don’t have any marking on them are very likely under copyright, but we can’t say for sure, since there’s nowhere to go to look.

But as expensive copyright violation suits can still be brought against these works, it means any institution in the same situation can be exposed to budget-busting lawsuits at any time.

The article goes on to describe legislation being proposed at the Federal level to ascribe new guidelines to digital document availability and sharing, and the University of Michigan’s new project to identify orphan works in the HathiTrust collection.


  1. This is a terrible situation. A commonsense approach would be to make the material available, and withdraw on complaint. But of course University lawyers will have none of that, and so the material remains inaccessible.

    It also irks me to find material that is clearly in the public domain — scanned books from the 19th century — being made available only to subscribers (in the case of Hathi) or in snippet view (Google books). Obviously, whoever made the effort to scan has a right to control access if they wish, but to my mind this is outside the spirit of academia, which should foster the free dissemination of information and knowledge.

  2. @Jack: Good point. Title is fixed. Yes, the physical volumes, recordings, photos, etc, are available for scholars to peruse… provided they can get to them. Digital versions would obviously open up their exposure to a much larger audience… the best part of digital, its availability to anyone with an internet connection.

    @spotrick: Scanning doesn’t automatically give the scanner the right to grant access or to disseminate material; that’s exactly the issue here. We all know the laws are behind the curve on public use, especially in regards to libraries and public/private institutions. Hopefully the issue will help prod lawmakers into acting fairly, and sooner rather than later.

  3. The article is thinly-disguised propaganda emanating from Google and other infringement-based sleazos. Google has been trying for years to cripple copyright and leave itself free to steal without worry of bothersome lawsuits. A main thrust of Google’s propaganda is to constantly plant articles about the supposed problem of “Orphan Works.” Google’s definition of Orphan Works, in frank terms, is “stuff Google wants to steal.”

    Google has been pushing the falsely-named Orphan Works bill at the federal level for years. Google’s effort is opposed by creators; including photographers, artists, writers, publishers. It is backed by infringement-based operations such as Google and several other “steal everything” search engines and aggregators.

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