Hansen, David. 2016. Digitizing Orphan Works: Legal Strategies to Reduce Risks for Open Access to Copyrighted Orphan Works. Kyle K. Courtney and Peter Suber, eds., Harvard Library.
“In the United States, the vast majority of 20th century creative expression—everything from books and movies to letters, emails, and notes—is protected by a copyright system that grants owners significant legal power to prevent use of their creations without permission. For a large number of works, however, users cannot locate or even identify owners to seek permission. These “orphan works” have, for nearly two decades, confounded librarians and archivists who want to provide free, online, open access to their collections. Digitizers often shy away from orphan works because of the perceived risk of legal action should an owner of one of these works later appear and sue. As the Copyright Office has observed, “the risk of liability for copyright infringement, however remote, is enough to prompt them not the make use of [an orphan] work.” No provision of U.S. law speaks directly to orphan works. There are, however, many legal defenses and risk management strategies that libraries and archives can use to provide open access to orphan works. A handful of those defenses and strategies, such as fair use, are currently used in practice. This report shines a light on the large number of other, under-explored legal defenses and risk management strategies available to libraries and archives.”