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CAA Copyright Initiative: Orphan Works

On March 25, the College Art Association filed comments with the US Copyright Office in response to a Notice of Inquiry to study the problem of “orphan works”—works that are still in copyright, but where the copyright holder cannot be found and the rights cleared. The CAA comments support a proposal to alter copyright law to facilitate the use of such works by artists, scholars, and museums alike.

Scholars and publishers working in twentieth-century and contemporary art are familiar with this problem: You want to publish a picture or quote a text; you are ready to clear permissions and pay any necessary fees, but you can’t find the artist or author, or an estate. What do you do?

Background and Summary of the US Copyright Office Initiative

On January 26, 2005, the US Copyright Office issued a Notice seeking information about "orphan works." Orphan works are works (images/photos, letters, books, works of art, and others) that are still formally protected by copyright, but where a potential user—scholar, teacher, artist, publisher, or other person or institution—is unable to clear rights. The CAA comments state that a work is “orphaned” when a) there is no copyright information associated with the work; b) the information is inadequate or inaccurate; or c) attempts to contact possible rights holders have proved futile (no one at last known address; publisher out of business, no responses to letters, etc.). Examples of such orphan works might be unsourced/uncredited photographs in older books; foreign works without copyright information; unsigned works of art; and letters written by persons who died within the last seventy years but who left no (findable) heirs. For CAA members, the problems posed by orphan works can be considerable. The Copyright Office has suggested that there is some value in being able to use these works, even if rights cannot be cleared.

The problem of finding the holders of rights in orphan works has been exacerbated by the recent extension of the term of copyright, which has postponed the date on which certain older works would otherwise enter the public domain (usually works published before 1923). However, the problem of orphan works is certainly not confined to older works; information accompanying far newer and even recent works may also be inadequate for a user today to find the rights holder.

What CAA Is Doing

The College Art Association, with many others (including libraries, museums, public-interest groups, and associations), filed comments in response to this Notice on March 25, 2005. CAA also participated in crafting a Proposal submitted by the Copyright Clearance Initiative (CCI) of the Glushko-Samuelson Intellectual Property Law Clinic at American University’s Washington College of Law. This proposal, as described more fully in CAA’s comments, proposes a revision of the copyright law that would meet the needs and concerns of the widest range of copyright users and copyright owners (including CAA members), create the least administrative bureaucracy, and set a good ethical standard. The National Humanities Alliance endorsed the CCI proposal. The American Council of Learned Societies, the Visual Resources Association and the Art Libraries Society of North America expressly endorsed the CAA comments as well as the CCI proposal. Throughout the process of working with CCI in formulating its proposal and in the drafting of the CAA comments, CAA consulted and worked closely with alliances of art museums, libraries, and numerous other groups who submitted their own comments. These comments propose the same or similar solutions to address the orphan works problem.

CAA is extremely grateful to the many dozens of respondents who submitted anecdotes and comments for use in our text. We quoted from or cited to many of them and all were very helpful in guiding our work. Though the majority of comments described the experiences of users of copyrighted works (artists and scholars) who have had difficulties in obtaining permission to use such materials, we also received thoughtful comments from some copyright owners (artists and scholars) who urged that the strong protections for copyright owners now embedded in US copyright law not be weakened, regardless of the need for a solution to address the orphan works issue. CAA’s comments attempt to take all the concerns of all of our members into account. We welcome your further thoughts on this matter. Letters on this topic to the editor of CAA News are invited. Please send letters to caanews@collegeart.org.

Next Steps

All comments, including CAA’s, are available on the website of the US Copyright Office. Parties have until May 9 to file reply comments, which are intended to respond to the initial comments. Thereafter, the Copyright Office will draft a report studying the issues and perhaps proposing one or more legislative approaches to address the concerns raised by the commenting parties. CAA members who would like to submit reply comments are asked to send them directly to the Copyright Office, with a copy to nyoffice@collegeart.org with “Orphan Work Copyrights” in the subject line. If you would like to send us stories about your own experiences with orphan works, please send them to us at the same address.

Published in March 2005.

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