The American University Program on Information Justice and Intellectual Property, AU’s Center for Media & Social Impact, and the Berkeley Digital Library Copyright Project have released the Statement of Best Practices in Fair Use of Orphan Works for Libraries & Archives. Over 150 librarians, archivists and other memory institution professionals have contributed to the development of this Statement, which provides clear and easy to understand guidance for memory institutions that seek to provide digital preservation and access to collections containing copyrighted, orphan works under the doctrine of fair use. Excerpts follow:
Introduction
Libraries, archives, institutional custodians of record and other non-profit organizations that preserve memory serve as stewards for a large share of the world’s cultural, historical, and scientific record. While performing many distinctive functions and often working within larger organizations, the professionals who dedicate themselves to preserving memory also share common purposes and challenges. In this document, we refer to them collectively as “memory institution professionals.”
These professionals’ individual objectives derive from the shared mission of their institutions. Preserving a treasury of primary resources consisting primarily of unpublished documents, ephemera, and other unique items, and providing access to it for research, scholarship, and the advancement of knowledge are core features of that mission. When these resources are both securely housed and widely available, an important social interest in facilitating researchers’ and the broader public’s understanding of the knowledge contained in these collections is fulfilled. Digital technology gives memory institutions an opportunity to safely store their collections in ways that also create opportunities to give ever-greater numbers of people the benefit of them. By this means, the institutional objectives of the organizations in which memory collections are located (from larger research libraries to small specialized archives) are also advanced.
Some collections held by memory institutions consist primarily of items old enough that copyright presents few practical challenges. Other collections may be sufficiently homogenous, and closely enough associated with a particular source, that it makes good sense to seek rights clearances before proceeding to digitize or make them accessible. A number of collections, however, lack such homogeneity, and include items from many sources. In particular, many collections include numerous “orphan” works, which are difficult or impossible to associate with active rightsholders who might give permission for their use.2 Some rightsholders may have been corporate entities that have ceased to exist. Other rightsholders may once have been locatable, but have become difficult or impossible to find today. Some likely did not create works with copyright in mind, and had no reason to remain available for inquiries.
This document considers the role that the doctrine of fair use may play in helping to resolve the copyright dilemmas that dealing with such collections can present. It addresses specifically how libraries, archives, museums, and other memory institutions can proceed with respect to collections that, based on professionals’ expertise, clearly appear to contain significant numbers of orphan works…
What this is
This statement of best practices represents the carefully derived community consensus view that emerged from more than a year of discussions. It articulates two broad best practices principles, and, accompanying the second, a range of related qualifications that describe practices supported by fair use that promote the mission of memory institution professionals who manage collections that are believed to contain orphan works. The principles should not be read without the associated qualifying language.
The best practices are stated in general terms so that any institution can take these best practices and apply them to its own circumstances, as a tool to help inform its own legal and risk analyses.
The scope of this document:
Although the principles and best practices articulated in this document might logically be extended to collections that contain copyrighted material more generally, this document, like the discussions that led up to it, is specifically intended to guide activities with collections that are believed to contain a significant number of orphan works. Orphan works have several distinct characteristics that can be relevant to the fair use analysis, as discussed below. Most importantly, they are, by definition, not active in the market and may not have been prepared for market purposes in the first place. This increases the social value of digitizing them while simultaneously limiting any resulting economic harm to rightsholders.
What this isn’t
This statement does not describe the limits of fair use in memory institutions, but articulates how professionals understand the doctrine to apply in a limited number of recurrent situations that they face in digitizing collections that include orphan works. Institutions may be able to make persuasive arguments for fair use in circumstances that go beyond the shared
norms expressed here, just as they may have good reasons for choosing policies that do not take full advantage of these consensus principles.
This statement was not negotiated with rightsholders that do not have as their mission to collect, preserve, and provide access to collections of material.
This statement lays out the reasoning by which memory institution professionals believe they can exercise their fair use rights; it does not present rules or bright-line tests. Rules and bright-line tests ignore the fact that, as is true of all rights that enable freedom of expression, the effective exercise of fair use requires both an understanding of the particular context and consistent reasoning from instance to instance.
Nor does this statement suggest that the exercise of fair use rights is an obligation of memory institutions. Relationships with donors, extraordinary privacy concerns related to some collections, and each institution’s own tolerance for risk are just some of the factors that may lead some to decide not to exercise fair use rights in certain situations.
This statement is not a guide to using material that people give the public permission to use, such as works covered by Creative Commons licenses. While fair use applies to such works, anyone may use those works in ways their owners authorize, in addition to ways permitted by the fair use doctrine.
Similarly, it is not a guide to the use of works that are in the public domain; copyright does not limit the use of these works, including uses that otherwise would far exceed the bounds of fair use. Because many library and archives digitization projects may include early 20th-century works that are potentially in the public domain, we repeat a recommendation made in the Report on Orphan Works Challenges for the community to develop educational materials to help librarians and archivists make public domain status determinations.
Risk Management and Fair Use Analysis:
Digitization projects in memory institutions naturally give rise to risk management questions. Indeed, throughout the discussion groups, memory institution professionals frequently expressed ideas about risk management strategies that might be appropriate in using collections that are believed to contain orphan works. Managing institutional risk in the use of copyrighted collection materials is important, and archivists and librarians have recently produced several helpful guidance documents on this subject.12 Those documents emphasize that the fair use assessment is an important part of any risk management strategy.
This document, however, is more narrowly focused. It reflects memory institution professionals’ consensus discussions of situations where institutional practices support a claim of fair use. Accordingly, it emphasizes clearly articulating how the law of fair use can apply to memory institutions’ use of collections that are believed to contain orphan works. Fair use, of course, is a “rule of reason.” This means that some of the factors that directly affect the fair use assessment may also affect the level of risk experienced by an institution for other practical reasons. In these cases, practices may positively affect the user’s position under fair use, while at the same time decreasing the likelihood that any rightsholder will come forward to challenge the digitization project.
