Hansen, Hashimoto, Hinze, Samuelson and Urban (2013)

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1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Hansen, Hashimoto, Hinze, Samuelson and Urban (2013)
Title: Solving the Orphan Works Problem for the United States
Author(s): Hansen, D., Hashimoto, K, Hinze, G., Samuelson, P., Urban, J.
Year: 2013
Citation: Hansen, D. R., Hashimoto, K., Hinze, G., Samuelson, P., & Urban, J. M. (2013). Solving the orphan works problem for the united states. Columbia Journal of Law & the Arts, 37(1).
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
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About the Data
Data Description: The study uses various sources of data for support, including empirical evidence collected by the U.S. Copyright Office, the Berkeley Digital Library Copyright Project, the UK Intellectual Property Office’s Final Impact Assessment on Orphan Works, the Report on Orphan Works Challenges for Libraries, Archives and Other Memory Institutions, and the Hargreaves Review.
Data Type: Secondary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
  • 2013
Funder(s):
  • Not stated

Abstract

Over the last decade, the problem of orphan works — i.e., copyrighted works whose owners cannot be located by a reasonably diligent search — has come sharply into focus as libraries, archives, and other large repositories of copyrighted works have sought to digitize and make available their collections online. Although this problem is certainly not limited to digital libraries, it has proven especially challenging for these organizations because they hold diverse collections that include millions of books, articles, letters, photographs, home movies, films, and other types of works. Many items come with a complex, unknown, and (often) unknowable history of copyright ownership. Because U.S. copyright law provides for both strong injunctive relief and monetary damages (in the form of statutory damages of up to $150,000 per work infringed), organizations that cannot obtain permission often do not make their collections available at all.

In October 2012, the U.S. Copyright Office initiated a new study of orphan works and mass digitization, and has indicated that it is a high-priority policy issue for the office. That study, and the work that preceded it, has highlighted the wide array of perspectives about why and how to address the orphan works problem. In this article, we present evidence that the orphan works problem is very real and that it inhibits many socially valuable uses of copyrighted works by libraries, archives, museums and other memory institutions. We then canvass the array of potential solutions, and ultimately conclude that fair use, combined with the Copyright Office’s remedy limitation approach, are better approaches for addressing this problem in the United States than alternatives proposed elsewhere. Finally, we explore future-looking changes, such as the reintroduction of copyright formalities and the development of registries, that would reduce the number of orphan works in the future.

Main Results of the Study

  • Across the spectrum of works held, the numbers of suspected orphans is reported to be large:
    • of 548,000 artworks – 20 to 25% are orphaned
    • of 750,000 sound recording (hrs) – 5 to 10% are orphaned
    • of 21,800,000 commercial film (hrs) – 0 to 7% are orphaned
    • of 513,000 archive film (hrs) – 5 to 35% are orphaned
    • of more than 100,000,000 photo libraries – approximately 0% are orphaned
    • of 28,280,000 archive photos – 5 to 90% are orphaned
    • of 10,400,000 written material – 4 to 30% are orphaned
    • of 38,000,000 mixed collections – 8 to 40% are orphaned
  • There is clear evidence that the orphan works problem stifles libraries and archives’ efforts to effectively use their collections and prevents those organizations from fulfilling their mission of making collections available for research and scholarship.

Policy Implications as Stated By Author

  • Fair use, combined with the limitations on remedies approach, as proposed by the U.S. Copyright Office, and future looking changes that would reduce the number of orphan works going forward, would provide the U.S. with a workable and cohesive approach to the orphan works problem.


Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Green-tick.png
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Green-tick.png
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets

Sample size: 1
Level of aggregation: Case study
Period of material under study: 2013