The Orphan Works Controversy Heats Up Again

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On Monday, September 12th, the Authors Guild filed a copyright infringement suit against the HathiTrust, a non-profit digital repository partnership between major research institutions and libraries, the University of Michigan, the University of California, the University of Wisconsin, Indiana University, and Cornell University.  The suit alleges that the HathiTrust and the universities are violating the rights of rightsholders by systematically digitizing, storing, and distributing copies of books held by these institutions without permission.

Recently the University of Michigan announced the initiation of the Orphan Works Project, whose goal is to identify orphan works (i.e., books subject to copyright but whose copyright holder cannot be identified or contacted).  The Project’s initial focus is on those digital books held by the HathiTrust to which these and other institutions have contributed scanned copies of works.  Other institutions, both those named in the suit and additional ones not named, have joined the Project.  Participants would investigate the status of the almost 10 million digitized books in the HathiTrust’s repository.  After investigation if the author and publisher information could not be located for each book and if the book was no longer available, the book would be put on a list of orphan work candidates.  If the copyright owner was located (at any time), the book would be removed from the list.  If the owner was not identified or located, the participating institutions would then make their copy of the book fully available to its own faculty and students only.  The first copies are to be available on October 13th.

The suit targets Orphan Works Project participants who are also participants in the Google Books Project; not those who are participants in only one of these initiatives.  The suit further states that the named universities defend their actions by claiming exemptions under both the Fair Use and the Reproduction by Libraries and Archives  provisions of the Copyright Act.  No damages are asked for in the complaint, but the suit does seek an injunction to “impound” the digital copies and to stop further scanning and display. 

The Association of Research Libraries has prepared a thorough Resource Packet on Orphan Works that includes an FAQ and an analysis of HathiTrust’s use of orphan works.  James Grimmelmann, Associate Professor at New York Law School, has written an excellent summary of the suit on his blog.

EDUCAUSE will continue to follow and report on this issue.