Exceptions: Orphan Copyrights: Balancing the Needs of Education and Fair Use

Free Speech Issue: Many items of great historical and educational value are not available for educators to use because the copyright holder cannot be found and the risk of using the material might lead to a copyright lawsuit.

Introduction

There has always been a tenuous relationship between the fair use provisons of the United States copyright laws and education. Those who hold copyrights have been vigorous to defend their rights against everyone--even those who legitimately seek to use materials according to the fair use guidelines. This becomes even Because of costly lawsuits, only wealthy publishing companies, or those who are risk takers, can afford to openly challenge these entities by demanding their rights. When researchers want to use even more material than that granted by fair use provisions, the risks become even greater.

Discussion
Normally, a researcher seeks a release from a copyright holder when they wish to utilize some portion of their work--but sometimes securing a release becomes next to impossible. That's because there are many books, recordings, photographs and other materials whose copyright owners can't be found. Known as orphan works, many of these materials would be of great value to museums, libraries, universities, private citizens and researchers. Thus, a researcher faces a dilemma. They can give up their research altogether; or, they can use the materials and hope they somehow avoid legal problems associated with copyright infringement lawsuits.

Examples
According to the Chronicle of Higher Education, UCLA has a major collection of Mexican and Mexican-American sound recordings dating back to 1905. Because of unknown repercussions, they must limit availability of these recordings.

The Chronicle also describes a similar problem faced by the University of California at San Diego. They have more than 100,000 photographs located at the Scripps Oceanography Archieves. Unfortunately, except for relatively few of the photographs, Scripps doesn't know which of the donated pictures are in the public domain and can be shared online.

These are but a few of the examples of orphan collections that could be of great use to colleges and universities to further public knowledge.

Help is on the way--hopefully!
According to information found on the American Society Media Photographers website, legislation is being discussed once again in Congress for laws that would ease the "orphan works" problem and allow good-faith users of copyrighted content to use information when they cannot locate the copyright owner after a diligent search. Previous legislative efforts in this regard (Shawn Bentley Orphan Works Act) died in 2008.

In the Meantime
Until legislation is passed to help remedy this problem, Here is what Columbia University recommends for those who need to use an orphan work more than the fair use proposals allow but cannot locate the copywrite holder.

If Possible, return to fair use. Scale the work back until it becomes defensible under fair use provisions.
Replace the material with alternative works.
Alter the use of copyrighted works.
Conduct a risk-benefit analysis. This means that you must balance whether or not the use of the material outweighs the risk of your material being seen by an original copyright holder.

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