>> SAA: Thank you, Mr. Chair. Orphan works, what an appropriate name for the stuff of everyday life that we all create? Diaries, business memos and photographs that we never bother to mark with our own names. Most of it created with no commercial intent. However, these are the very documents that make archives invaluable for research and study. They are what we must copy and distribute to meet our preservation and access missions, yet to follow copyright law archives must track down the creators just as if they were commercial writers, but how and at what cost?Two recent studies show us why a copyright exception is needed for archival orphan works. One U.S. university attempted to identify 3400 authors in the correspondence files of one 20th century politician, then determine the death dates, then locality the descendents of those that had died less than 70 years ago, then request permission. After two years and thousands of dollars, most remained untraceable. Only four descendents were found.The archivists crossed their fingers and digitized any way. Another U.S. university working with AIDS related material from the 180s through 2005 experienced the same cost prohibitive searches even though material was quite recent and one would think you could find the more recent authors. In this case, 1377 persons held the copyright, but the works of nearly one-third of these could not be displayed because the rights holders failed to respond to inquiries or could not be identified or located.
Few of these documents were of a commercial nature, but reaching this result took 85% of the project’s time. We do not have the extra funds to be able to afford such extravagance and do projects. Unlike the other university these archivists risk aversion resulted in defacto censoring of materials where contact could not be found or was unresponsive. Even if an archival item was originally created for the marketplace, it can still become an orphan. For instance, we hold an unpublished photograph of a Puerto Rican sports team marching under the U.S. flag at the 150 pan American games two years after the team had marred under the Puerto Rico’s own flag. Despite knowing the photographer and address we could not trace him. The name was too common and multiple regime changes had altered street names and addresses in Guatemala city. Should this prevent us from making the photo available. Archivists are not experts in international copyright law and we should not be expected to make such decisions. No licensing scheme could equitily solve this problem.
If an author is unknowable or untraceable, how can they be represented in a collective? And where would the licensing fees go? Certainly it wouldn’t go to the orphan authors because they can’t be found. The problem is that copyright like licensing was conceived with the marketplace in mind, but it fails to adapt for the dilemma of works that were never in commerce or have drifted out of commerce with no trace. For these finding a copyright holder can be near impossible. A one size fits all diligent search requirement is unlikely to find rights holders for archival orphans as has been noted but it will create unsustainable costs. Without exceptions the world will lose access to this huge treasure of historically important.