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.