While reviewing my notes from last week’s orphan works roundtables, it is clear that some rights holders were still stinging from the results of two recent court rulings—the HathiTrust and Google Book Search decisions. In both of these decisions the court validated that the scanning of books were transformative fair uses that enhance search, preserve texts and make content available to people with print disabilities. The rights holders did not prevail arguing that prior permission (with or without a royalty fee) are necessary and that fair use did not apply to full text scanning. They also noted that both cases are on appeal, which is true.
Mass digitization also was a topic at the orphan works roundtables. Since the two subjects were thrown in together, it is important to distinguish mass digitization (scanning) from the use of orphan works. With mass digitization, full text access is not available to users unless the rights holder first gives permission. Scanning itself is a fair use (as has been noted by the courts) and does not require prior permission. With orphan works, the issue is using any work—text, photos, video, sculptural works and so on—in full or in part for something for which permission is required but the rights holder is not known or cannot be found. After a diligent and reasonable search for the rights holder, can the user make use of the work? If so, and the rights holder turns up and does not wish to negotiate a license with the user, can the rights holder sue and expect the full array of remedies—including statutory damages and injunction?
Important note: if the use of an orphan work is fair (based on the four factors of fair use, codified as Section 107 of the copyright law), permission from the rights holders is not required in the first place. If the rights holder turns up and sues for copyright infringement, he will have the full array of remedies available to him.
I think that rights holder fear that users will conduct a sloppy search for a rights holder or will just use the work with no justification what so ever. The rights holders fear the “bad actor.”
The libraries seek the rights holder of an orphan work in any way possible and if the rights holder is not found, librarians seriously consider whether to take the risk and use the work. Reasonable search criteria have been developed by libraries and archives that demonstrate good faith, including IFLA/IPA Joint Statement on Orphan Works, University of Massachusetts Amherst Libraries Orphan Works Guidelines, and the Orphan Works: Statement of Best Practices from the Society of American Archivists.