Copyright Law

When I teach Digital Copyright to library students, a popular final paper topic that students used to choose was best practices on digitizing orphan works.

I was always eager to read their brilliant ideas, but unfortunately, they never had any. They would wring their hands, report on the literature, but never move the conversation forward.

Step in the Society of American Archivists' newly released 15 page Orphan Works: Statement of Best Practices. Bravo!  It's put together by some very smart people who work with orphans day in and day out (including our own Peter Hirtle).

The statement  helpfully reminds us to check first to see if the work may be in the public domain.  Many times people forget that step, which can save a lot of time and grief.

Then it draws a sliding scale of effort required based on factors such as the likelihood of finding the rights holder, the age of the work, the status of the creator (professional/amateur), and the proposed distribution of the work (narrow, easy takedown v. widespread distribution).  These are all factors I discuss with library folks, but in a scattered fashion as cases arise.  This simple chart really makes it understandable in a comprehensive yet  easy format.

Then, the heart of the beast - what constitutes a diligent effort?  I love the way the document clarifies that you first need to try to identify the creator, but that you also need to try to identify the rights holder, which is often different, especially for older works that may have dead authors.

How far do you go in identifying and locating creators and rights holders? This is the $30,000 question, and the guide really helps you here. It's as if you have the collective wisdom of the archivist community at your beck and call.   True, this isn't  legal guidance based on statutes/court cases, but we  don't have those yet.  This will likely influence those arenas, should the time ever come.

Finally, a reminder that we should document our unfruitful searches, to show that reasonable efforts were made

A Flowchart is given (a little scary, but still useful), along with a summary table and further resources.