several legislative proposals in the U.S. to facilitate use of orphan works, none have passed and orphan works do not have special legislative status under U.S. law. Orphan works, as described by the Supreme Court, are “older and more obscure works with minimal commercial value.”[1] But with copyright owners that are difficult or impossible to track down, Justices Breyer and Alito lament the “[u]nusually high administrative costs” that “threaten to severely limit distribution and use of those works … which, despite their characteristic lack of economic value, can prove culturally invaluable.”[2]
Determining which works may be orphaned is potentially hard. However, it is clear that librarians, information professionals who are experts at searching for materials and determining provenance, are among the best suited to conduct such searches.[3] With the research tools available, such as the online versions of the CCE and the Stanford Renewal Database, searching for the rightsholder for a potential orphan has been aided by the digital availability of these works. And, most recently, the U.S. Copyright Office released its registration card catalog online, which could make discovery of a registered work and its potential rightsholder even more effective.[4]
- 3.Non-fiction and Factual Works
Finally, a third collection characteristic that may reduce risk and enhance the fair use position is for libraries to focus their CDL efforts on works that are non-fiction or primarily factual. As a way to enhance the fair use position, the “nature of the work” factor tends to weigh more in favor of uses of works that are further from the core of what copyright was designed to protect. While courts have not placed significant weight on this factor, it still stands as a potential area for collection selection to enhance the fair use argument and lower risk.
Libraries have many choices. They may choose heavily factual or scientific books, or merely books that are categorized as non-fiction. They might also choose to apply CDL to books that incorporate significant amounts of non-
- ↑ Golan v. Holder, 565 U.S. 302, 355 (2012) (Breyer, with whom Alito joined, dissenting).
- ↑ Id.
- ↑ We do not believe libraries should adhere to rigid search standards that have been implemented in other jurisdictions, though they may provide useful guidance. Experience so far in those jurisdictions has shown that those search standards, rather than reliance on the reasoned expertise of information search professionals in line with general best practices, is not efficient or effective. See U.K. Intellectual Property Office, Orphan Works Dilligent Search Guidance for Applicants, (March 2018), https://www.gov.uk/government/publications/orphan-works-diligent-search-guidance-for-applicants. See also Aura Bertoni, Flavia Guerrieri & Maria Lillà Montagnanim, Requirements for Diligent Search in 20 European Countries (EnDow Report 2, June 2017), http://diligentsearch.eu/wp-content/uploads/EnDOW%20Report%202.pdf.
- ↑ U.S. Copyright Office, Virtual Card Catalog (n.d.) https://vcc.copyright.gov/
