Ever since the Authors Guild filed suit against HathiTrust, alleging that its orphan works program was a rights grab from authors, there has been renewed interest in both the potential number of orphan works, and the amount of work required to ascertain their status. But instead of arguing over whether or not any given book is an orphan or not, wouldn’t we be better off thinking about how to work together to find a solution to the problem?
Orphan works have been an issue of great frustration for libraries, archives, and organizations seeking to digitize and make available print materials in their collections, because the cost of determining the rights status of any given work is quite high in terms of labor. Looking up individual titles in myriad databases and attempting to trace any leads that might be found can consume a prodigious amount of time. This is why many digitization programs, including Google Book Search, have reached for an “opt-out” policy where rightsholders have to actively claim and remove works from digitization workflows.
An orphan work is a work for which a valid rights holder is untraceable, or cannot be determined. There are several follow-on, or related cases (e.g., when a putatively responsible rightsholder can be located but no contact can be made; or no response is returned to a request for rights clarification or use). These latter instances are not strictly orphan works, but they also frustrate access.
Although some rights holder organizations have asserted that there are far fewer orphans than researchers allege (see the CLIR study conducted by John P. Wilkin of the University of Michigan), it is highly likely that there are many orphans on library shelves. Some of these are unpublished works. Many are published works from firms long-ago acquired or gone out-of-business, governed by lost, destroyed, or unlocatable contracts. There are also zombie rights wandering the terra incognita between deceased authors and never-named, or never-notified, heirs. In fact, a recent survey conducted by the British Library on behalf of the European Union’s ARROW registry project, “Seeking new landscapes: A rights clearance study in the context of mass digitisation of 140 books published between 1870 and 2010,” found that of the works it examined, the 1980s was the decade with the highest proportion of definitely in-copyright orphan works: 50%.
HathiTrust’s orphan clearance program had a clearly delineated course to help determine whether any potentially in-copyright work might have an active rightsholder, be verifiably public domain, or was presumed orphaned. But, in the days following the AG suit, the AG, through its own efforts and via community sourcing, determined that a significant number of works listed by Hathi as possibly orphan were, in fact, not lacking rightsholders. In response, the University of Michigan halted the program, and has commenced a review and correction of its procedures.
But, in our concern over whether or not any given work might be located, we risk a trees-and-forest misdirection. It it is safe to assert that there are many works for which rights status is uncertain and must be clarified. However, rather than focus on numbers, or individual titles, we should be focusing on how we can make the determination of rights status more efficient.
The British Library report compared a laborious, exhaustive hand-conducted clearance process, with automated queries against the centralized rights registry, ARROW, maintained in the European Union. ARROW integrates information about works within a single database repository, and one obvious use is in clarifying whether or not a work is an orphan. Not surprisingly, a centralized and automated registry beats manual examination handily in speed, and with almost equally good results. “The potential that a single automated diligent search is all that is needed to clear rights,” the report noted, “makes mass clearance of rights an achievable goal.”
Wouldn’t it be better if libraries and rights representing organizations, agents and publishers, author unions and archives, worked together to figure out how to join with efforts, such as ARROW, to build comprehensive and interoperable registries of rights information? This may not be the easiest, or quickest, solution, but, as the British Library report suggests, it is the solution that will work. It would help libraries and archives that want to preserve and increase access to older works in their collections. And, there may be new opportunities for publishers and authors as well.
Working together is harder than being refuseniks. But it is more productive.