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Removing Commons category (Category:Orphan works in the United States) as it does not exist

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{{Further|United States copyright law}}
{{POV|date=August 2013}}
[[File:US-CopyrightOffice-Seal.svg|thumb|Seal of the United States Copyright Office]]

An [[orphan work]] is a [[copyright]]ed work whose owner is impossible to identify or contact.<ref name=orph-pdf/> This inability to request permission from the copyright owner often means orphan works cannot be used in new works nor digitized, except when [[fair use]] exceptions apply. Until recently, public libraries could not distribute orphaned books without risking being fined up to $150,000 if the owner of the copyright were to come forward.<ref name=varian>{{cite news|last=Varian|first=Hal|title=Copyrights That No One Knows About Don't Help Anyone|url=https://www.nytimes.com/2007/05/31/business/31scene.html|work=New York Times|date=31 May 2007|accessdate=22 October 2012}}</ref> This problem was addressed in the 2011 case [[Google Book Search Settlement Agreement|''Authors Guild, Inc. v. Google'']].

==History==
The [[orphan works]] problem arose in the United States from the [[Copyright Act of 1976]], which eliminated the need to register copyrighted works. Instead, according to {{UnitedStatesCode|17|102}}, all "original works of authorship fixed in any tangible medium of expression"<ref>17 U.S.C. 102.</ref> are automatically granted copyright protection. This Act made obtaining and maintaining copyright protection substantially easier than the previous [[Copyright Act of 1909]]. It also made unnecessary any central recording system to track and identify copyright-holders, but also made it difficult to find or contact the creator of a copyrighted work if the person or organization was not readily known. Thus, any use of the orphaned work outside of what is permitted as [[fair use]] is potentially a violation of copyright. Potential users of orphaned works are often not willing to take on that risk of copyright violation, so they may individually investigate the copyright status of each work they plan to use.<ref name=varian />

To some, this scenario is not in the public interest; it limits works that are available to the public. It also discourages the creation of new works that incorporate existing works. Creators who want to use an orphan work are often unwilling to do so for fear that they will have to pay a huge amount of money in damages if the owner ever appears; the risk of additional liability or litigation may be too high. This makes the work of historians, archivists, artists, scholars, and publishers at times more difficult and costly than necessary.<ref>{{cite web|title=Orphan Works|url=http://web.law.duke.edu/cspd/orphanworks.html|work=Center for the Study of the Public Domain|publisher=Duke University|access-date=2012-10-18|archive-url=https://web.archive.org/web/20160317115502/https://web.law.duke.edu/cspd/orphanworks.html|archive-date=2016-03-17|url-status=dead}}</ref> The issue arises in Wikipedia, where the copyright owner of a photo that would have illustrated an article may be unknown.

Libraries and archives do have limited privileges to make copies of certain orphan works under section H of {{UnitedStatesCode|17|108}}.

==2006 study by US Copyright Office==
In January 2006, the [[United States Copyright Office]] released a report on orphan works.<ref name=orph-pdf/> This report was the culmination of a year-long study conducted by the office, based on open forums from the public to collect input.<ref>{{cite web|last=Keeley|first=Joe|title=Efforts by the U.S. Copyright Office|url=http://www.orphanworks.net/History/History/CopyrightOffice.html|work=OrphanWorks.net|accessdate=22 October 2012}}{{Dead link|date=April 2020 |bot=InternetArchiveBot |fix-attempted=yes }}</ref>

In it, the Copyright Office states that new legislation is desperately needed to address the orphan works problem. The report proposed that if a nonprofit organization such as a library used an orphan work and the copyright owner came forward, then the library would be exempt from huge copyright infringement fines as long as it stopped using the orphan work right away. Commercial uses of an orphan work in which the owner came forward would only be charged a "reasonable compensation"<ref name=orph-pdf>{{cite web|last=United States Copyright Office|date=2006|title=Report on Orphan Works|url=http://www.copyright.gov/orphan/orphan-report.pdf|publisher=Register of Copyrights}}</ref> of the profits, and use of the work would be allowed to continue.<ref name=chronicle>{{cite web|last=Foster|first=Andrea|title=Copyright Office Sides With Publishers in Proposal for Handling 'Orphan' Works|url=http://chronicle.com/article/Copyright-Office-Sides-With/4407|work=The Chronicle of Higher Education|accessdate=22 October 2012}}</ref>

The Office's proposed solution was criticized from both sides. Some academics thought that it favored publishers, and disfavored archivists and scholars.<ref name=chronicle/> Authors objected that the definition of orphan works would include many works that are being actively exploited, and would deprive authors of income from those works.<ref>{{cite web |title=Orphan Works and Extended Collective Licensing (ECL) |date=22 July 2015 |url=https://nwu.org/orphan-works-and-ecl/ |publisher=National Writers Union |access-date=25 February 2021}}</ref>

==Orphan works legislation==
Beginning in May 2006, various legislative bills have been introduced in [[United States Congress|Congress]] aimed at addressing the issue of orphan works.<ref>{{cite web| title = Copyright: Orphan Works| publisher = American Library Association | date = August 2006| url = http://www.ala.org/ala/washoff/WOissues/copyrightb/orphanworks/orphanworks.htm#house22may
| accessdate = 2006-11-28 |archiveurl = https://web.archive.org/web/20061125173819/http://www.ala.org/ala/washoff/WOissues/copyrightb/orphanworks/orphanworks.htm#house22may  |archivedate = 2006-11-25}}</ref> As of 2016, Congress has not yet passed any legislation.<ref>{{cite web| title = United States Copyright Office| url = http://www.copyright.gov/orphan/}}</ref>

In 2018, the [[Music Modernization Act]] established a framework for orphan work sound recordings to be used: the user must submit the orphan work to the [[United States Copyright Office]], at which point any copyright holder will be given 90 days to come forward and object to its use. If no rights holder emerges, or if the user successfully establishes the use is a noncommercial [[fair use]] of the recording, the recording may be used freely.<ref>{{cite web|url=https://www.eff.org/deeplinks/2018/09/new-music-modernization-act-has-major-fix-older-recordings-will-belong-public|title=The New Music Modernization Act Has a Major Fix: Older Recordings Will Belong to the Public, Orphan Recordings Will Be Heard Again|first=Mitch|last=Stoltz|date=19 September 2018|publisher=}}</ref>

==Attempts to make orphan works available==
The [[University of Michigan]] (UM) is leading the HathiTrust orphan works project,<ref>[http://orphanworks.hathitrust.org/ orphanworks.hathitrust.org]</ref> an initiative to make orphan works published between 1923 and 1963 on [[HathiTrust]] available to the UM community.<ref>{{cite web|title=HathiTrust Orphan Works Project Grows as University of California, Others Join Up|work=Library Journal|author=David Rapp|url=http://www.libraryjournal.com/lj/community/academiclibraries/891836-419/hathitrust_orphan_works_project_grows.html.csp|accessdate=12 November 2012|archive-url=https://web.archive.org/web/20120610160728/http://www.libraryjournal.com/lj/community/academiclibraries/891836-419/hathitrust_orphan_works_project_grows.html.csp|archive-date=10 June 2012|url-status=dead}}</ref> However, the project was put on hold as of September 2011 in the wake of a lawsuit filed against HathiTrust, UM, and four other member universities by the Authors Guild, Australian and Canadian authors' organizations, and eight authors to stop them from "reproducing, distributing and/or displaying" copyrighted works.<ref>{{cite web|title=University of Michigan Puts HathiTrust Orphan Works Project on Hold|author=David Rapp|url=http://www.libraryjournal.com/lj/home/892061-264/university_of_michigan_puts_hathitrust.html.csp|work=Library Journal|accessdate=12 November 2012|archive-url=https://web.archive.org/web/20121017133918/http://www.libraryjournal.com/lj/home/892061-264/university_of_michigan_puts_hathitrust.html.csp|archive-date=17 October 2012|url-status=dead}}</ref> This case was settled in HathiTrust's favor in ''[[Authors Guild, Inc. v. HathiTrust]]'' on January 6, 2015.

The [[Internet Archive]] in October 2017 started making available online some orphan works published between 1923 and 1941 inclusive, forming a collection called the "Sonny Bono memorial" (after [[Sonny Bono]], an entertainer and advocate for perpetual copyright for whom the [[Copyright Term Extension Act]] was named).<ref>{{cite web|accessdate=2017-10-14|title=Books from 1923 to 1941 Now Liberated! |publisher= Internet Archive Blogs |url= https://blog.archive.org/2017/10/10/books-from-1923-to-1941-now-liberated/ |website= blog.archive.org|date=10 October 2017 }}</ref>
The effort is made possible by [[17 U.S.C.]] [https://www.law.cornell.edu/uscode/text/17/108#h § 108(h)] when applied according to some actionable criteria proposed by scholars.<ref>{{cite journal|first1=Townsend|last1=Gard|last2=Elizabeth|title=Creating a Last Twenty (L20) Collection: Implementing Section 108(H) in Libraries, Archives and Museums|date=2017-10-02|location=Rochester, NY|ssrn=3049158}}</ref>

==See also==
*[[Abandonware]]
*[[Orphan film]]
*[[Public domain]]
* [[Books in the United States]]

==References==
{{reflist|30em}}

==External links==
* [http://www.law.berkeley.edu/11731.htm April 2012 symposium held by UC Berkeley Center for Law and Technology: "Orphan Works and Mass Digitization: Obstacles & Opportunities"]
* [http://www.copyright.gov/orphan/reports/orphan-works2015.pdf Orphan Works and Mass Digitization] (US Copyright Office, 2015)

{{USCopyrightActs}}

{{DEFAULTSORT:Orphan Works In The United States}}
[[Category:Orphan works]]
[[Category:United States copyright law]]

Orphan works in the United States - Revision history

JJR: 1 revision imported: Orphan_works

w>Pi bot: Removing Commons category (Category:Orphan works in the United States) as it does not exist