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Building on Others' WorksBuilding on Others' Works

The public domain and orphan works

Libraries, museums and archives are carrying out small, medium and massive digitization projects and providing public access to the resulting digital collections. Google, Amazon, Yahoo, and Microsoft, among others, are partnering with cultural institutions to increase the pace at which these collections are brought to the public. Foundations are providing needed financial support as well. These projects now number in the millions! I blog about the effects of mass digitization on copyright law and policy at Mass Digitization ~ changing copyright law and policy, and urge you to visit that site for more information.

Digitization has unleashed unprecedented interest in our cultural heritage, especially that portion of it that resides free and clear, in the public domain. It is, unfortunately, horrifying to realize that at the same time that through technological innovation we created this great potential to share and enrich our lives with the public domain of knowledge and creativity, through our legislative process we created laws and pursued policies that effectively sequester most of the works of the 20th century behind nearly impenetrable barriers that will last as long as a century or more. That such a long copyright term is really needed to provide an incentive to authors to create, or even to distributors to distribute, is absurd, and yet, copyright owners were able to convince legislators in most countries of the world to give them the keys to lock up their works, just at a time when their ability to benefit from wider access to and use of the works of others has dramatically increased. Copyright owners should be more realistic about the debt they owe to others: no author creates out of thin air.

Mass digitization has facilitated growing recognition that a policy of overprotection is just as destructive of copyright's aims as one of underprotection. The balance between the two is not static. It changes with the times. We need to change it now. That said, legislative change in most countries is glacial. This forces work-arounds. Many would say that that is a good thing. Whether it is or not, it's all we have in most cases. So what are our work-arounds for the gross mistake of century to century and a half long copyright terms?

First, we are developing better tools to identify those works that actually are in the public domain. The Google Book Search library partners are workingn with Google to enhance the algorithmic estimates Google must use, given the scale of its efforts, by applying human thinking about resources, work flows, and best practices for using the information we dig up to free those works that are already in the public domain but not heretofor identified as such. The University of Texas at Austin Libraries Public Domain Project is an example. We blog about our discoveries, we post our processes for others to build upon, and we share our results though our library catalog records and by publishing as much as we can.

Second, we are working with other libraries to begin developing best practices to define reasonable searches for copyright owners of different types of works. Much has been written on the subject of orphan works and what we should do to improve access to them, but the sad fact is that without courage on the parts of collection owners, most orphan works will remain, some of them forever, outside the digital environment. Because by definition they often lack sufficient information to identify their owners, identifying the date on which they would otherwise enter the public domain is also impossible. Even where that date can be deterined, it is often a long, long time away. Yet using these works as building blocks for other works would not be opposed in most cases either -- but there's no one to ask. Sound like an easy case for going forward with at least nonprofit uses, but there is something in the other side of the balance: copyright's draconian penalities for infringement. If it turns out a cultural institution was in error in determining that a work was an orphan and the owner turns up and desires to enforce his or her rights, the Copyright Act provides so much deterrent and punishment power that most nonprofits have just said, "no thanks," to the glimmer of what could be done to make the public aware of these works. But exceptions are beginning to show up. The problem of orphan works and determining exactly when a work enters the public domain are closely related. Often we think a work must be so old that it's bound to be public domain, but we can't be certain. Searching for the owner and not finding one helps to reduce the sense that one is risking a lot by digitizing and displaying such a work. And, indeed, in these situations and many others, libraries are beginning to take a chance that with a reasonable search, they can reduce the risk to an acceptable level and display the work with a special notice that advises the public that its appearance on the Website is not a guarantee that it can be used for any purpose. At least it is displayed. Others can weigh and balanc their own risks, given the goals of their projects. In this way, little by little, the public domain and the orphan works find their way into the light of day.

If you want to get involved in public domain or orphan works projects, there is no shortage of opportunities. Check the Open Content Alliance's homepage, and the Open Library Website. The Resource Shelf logs news of mass digitization projects. And a simple Google search for mass digitization projects yields a million and a half responses.

For more information about the effects of mass digitization projects on libraries and cultural institutions, please read Mass Digitization: Implicatons for Information Policy, a report from a March 2006 symposium on Scholarship and Libraries in Transition. Regarding the effects on copyright law and policy, see Mass Digitization ~ changing copyright law and policy.

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The Copyright Crash Course © 2001, 2007 Georgia K. Harper