Experiencing Problems in Tracing Copyright Owners? Copyright Office Seeks Advice on "Orphan Works"

AHA Staff, March 2005

What do you do if you can't find the copyright holder of a work (say, a photograph, article, or film clip) that you want to use in a book or a web site? In an attempt to solve this all-too common problem, the federal Copyright Office issued a Notice of Inquiry in late January, soliciting advice on the problem of "orphan works"—copyrighted works whose owners are difficult or even impossible to find.

This provides an important opportunity for historians who are interested in using materials created since 1920, because recent legislation (most notably the Berne Convention Implementation Act of 19

8 and the Sonny Bono Copyright Term Extension Act of 1998) have made the status of these materials increasingly ambiguous.
The burden currently rests with anyone who wants to reuse text, photographs, or other works in a book or digital collection to secure the rights to such materials from the copyright owner. Given ambiguities in what constitutes the "fair use" of such materials outside of a classroom setting, this can present a significant problem for historians of the 20th century.

Even the AHA has encountered difficulty in this areas, as the copyright for reports written by our committees in the middle part of the century were ceded to publishing companies that have since gone out of business or disappeared into larger corporate conglomerations. This makes securing the rights to digitize and post such reports on the AHA web site difficult.

The Copyright Office is seeking advice on how to define those works, examples of cases in which the inability to find a copyright owner prevented a publication or otherwise impeded the public good, and suggestions for solutions. The AHA will be weighing a response, and welcomes comments and suggestions from individual members, which should be sent to Robert B. Townsend. Individual responses directly to the Copyright Office are also encouraged.

Unfortunately, the notice provides a very short timeline for response, with a deadline of March 25. For the full text of the Notice of Inquiry and how to submit responses directly to the Copyright Office, see http://www.copyright.gov/fedreg/2005/70fr3739.html.