Chronicle article: Whose Work Is It, Anyway?

["Hamaker, Chuck" <cahamake@email.uncc.edu>]

An article from The Chronicle of Higher Education 
>From the issue dated July 29, 2005 

http://chronicle.com/prm/weekly/v51/i47/47a03301.htm

Whose Work Is It, Anyway?

The use of 'orphan works' of art and literature, whose creators cannot be
identified, puts scholars and artists at odds over changes in copyright
law

By SCOTT CARLSON

  ORPHAN WORKS -- copyrighted literature and art whose owners
   cannot be identified -- have led to an array of problems in
   publishing, digitizing projects, preservation efforts, and
   the filming of documentaries. Tomorrow and Wednesday, the
   U.S. Copyright Office is holding a series of hearings to
   determine whether copyright law should change to allow for
   more liberal use of orphan works. Scholars and artists are at
   odds over proposed changes.

Orphan works have led to complications not only in publishing but also in
digitizing projects, preservation efforts, and the creation of works like
film and video documentaries.

This week, at the urging of prominent legal scholars, academic-library
organizations, technology companies such as Google and Microsoft, and many
other interested parties, the U.S. Copyright Office is holding a series of
hearings to determine whether copyright law should change to allow for
more liberal use of orphan works.

Scholars and others weighed in earlier this year, filing comments on the
issue with the copyright office in anticipation of the hearings. The
American Historical Association, for example, noted that orphan works had
become a problem for scholars, "hampering the historian's ability to work
with the raw materials of history." ... ... some groups -- in particular
visual artists like photographers and illustrators -- strongly oppose any
loosening of the law for orphan works, seeing it as an assault on
copyright that will deprive artists and creators of their due. ... In
response to the U.S. Copyright Office's request for comments, Cornell
University librarians added up the money and time spent clearing copyright
on 343 monographs for a digital archive of literature on agriculture.
Although the library has spent $50,000 and months of staff time calling
publishers, authors, and authors' heirs, it has not been able to identify
the owners of 58 percent of the monographs.

"In 47 cases we were denied permission, and this was primarily because the
people we contacted were unsure whether they could authorize the
reproduction or not," says Peter B. Hirtle, who monitors
intellectual-property issues for Cornell's libraries. "Copyright is
supposed to advance the sciences and arts, and this is copyright becoming
an impediment to the sciences and arts." ... In its comments to the
copyright office, the Center for the Study of the Public Domain, at Duke
Law School, said whole generations of movies are at risk because of their
orphan status. Film deteriorates more rapidly than other media, such as
paper. Digitization projects could help preserve the films, but the center
notes that donors are not inclined to pay for the costly digitization of
movies that the public cannot see because of copyright restrictions. ...

Jane C. Ginsburg, a professor of law at Columbia University, read through
the comments submitted to the copyright office while she was submitting
her own. "There are an awful lot of submissions that say, 'It's a pain in
the butt to clear rights,'" she says. "That doesn't make a work an orphan
work. Both internationally and domestically, you don't want this to be
used as an excuse to screw individual authors." .. "Many of those who
raise concerns about orphan works start from the premise that there are
works that should be in the public domain because their authors don't care
about them, and that they are clogging up the system and preventing
subsequent authors and others from using them," she says. "That's not
necessarily a correct premise."

A group called the Illustrators' Partnership of America was formed on the
basis of issues such as this. Illustrators, the group points out, are hard
to trace if a picture appears uncredited in a book or online.

"Visual artists are particularly harmed by this concept of declaring
orphaned any work where the author can't be located or identified," says
Cynthia Turner, a medical illustrator who is part of the group. "That just
about covers all of our work. We are already having a lot of difficulty
with our work being separated from its original publication and being
thrown up on the Web and disseminated without our permission."

Ms. Turner and Brad Holland, an illustrator whose work has appeared in
Time and The New Yorker, argue that publishers and others will use
orphan-works exceptions to exploit artists' work.

"It would undermine our ability to control our rights and make a living
from the work that we produce," Ms. Turner says.

More information on orphan works, including comments submitted on the
issue, can be found at http://www.copyright.gov/orphan

The Association of Research Libraries maintains a Web site on orphan works
at http://www.arl.org/info/frn/copy/orphanedworks

The Illustrators' Partnership of America also maintains a site that
covers copyright issues at http://www.illustratorspartnership.org

copyright 2005 Chronicle of Higher Education