U. of Michigan Copyright Sleuths Start New Project to Investigate Orphan Works

The University of Michigan on Monday announced a new project to identify orphan works among the millions of volumes in the HathiTrust Digital Library.

The investigation is important because it may be a step on the path to broader access to these orphan books—copyrighted volumes whose owners can’t be identified or found.

The 8.7-million-volume HathiTrust collection, pooled by a consortium of research libraries largely from scans made by Google, may contain in the neighborhood of 2.5 million orphan works, according to one recent estimate. HathiTrust makes online access available for the full text of books in the public domain; it does not, as of now, provide full access to orphan books.

“We have all the tools in front of us, and it’s very frustrating to not be able to make things available,” says Melissa Levine, lead copyright officer at the University of Michigan Library.

Michigan is one of various institutions working on the orphan-works problem in the wake of a judge’s decision to reject a proposed legal settlement that would have allowed Google to open up access to many out-of-print books.

Some see legislation as the answer, but on Monday a coalition of library groups issued a statement that was cool to the possibility of lawmakers stepping in to fix various copyright problems affecting libraries, including orphan works.

“It is important to recognize that achieving a legislative solution to any of these issues will be difficult, if not impossible,” says the statement from the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries.

When the government previously considered the issue, anchored by a big 2006 report from the U.S. Copyright Office, proposed legislation would have allowed people to use orphan works if they failed to find the copyright owner after a reasonably diligent search.

Library groups are now weighing in on what legal changes might help today. Even without changes in Washington, though, they point out that libraries could be on safe legal ground—and immune from significant copyright infringement penalties—undertaking projects involving “mass digitization, the use of orphan works, and large-scale preservation.” Legal uncertainty often stymies such work. But the library associations stress the safety valve of “fair use,” a limitation to copyright law that may permit reproductions for teaching and research.

“There is a lot that we believe we can do under the status quo,” says Prue Adler, associate executive director of the Association of Research Libraries. ”Let’s have more libraries doing what Michigan is doing and use that as a model.”

What Michigan is doing is “detective work,” as Ms. Levine puts it. She has students probing in-copyright works from 1923 to 1963. They’re trying to determine ownership and, in the event that isn’t possible, documenting the dead ends that led them to conclude a work is orphaned.

They’re also developing methods that other HathiTrust institutions can use to speed up a task that Michigan says will require the hand-checking of millions of books. And the university will also create a way to publicize information about the orphans so their owners can have the chance to claim them.

There’s a strong possibility that the majority of orphans won’t have any surviving person or entity to claim ownership, according to the Michigan library.

The hope is to increase access to the orphan works after researching their status, Ms. Levine says, but how broad that access might be isn’t clear yet.

“That’s very much a question of how the institutions feel, in terms of liability exposure,” Ms. Levine says. “Personally I think that if something is an orphan, you should be able to make it available broadly, but it might not go that far, just depending on institutional comfort levels.”

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