Publication Date


Journal or Book Title

Berkeley Technology Law Journal


This fall, ACRL New England’s Scholarly Communication Interest Group is offering both a one- or two-day copyright workshop, in two different locations, taught by the New England Copyright Crew (NECC)! NECC includes Laura Quilter (Copyright and Information Policy Librarian, UMass Amherst), who spearheaded this approach last year at UMass, Kyle Courtney (Copyright Advisor, Harvard University), Ellen Finnie Duranceau (Program Manager, Scholarly Publishing, Copyright & Licensing, MIT Libraries), and Joan Emmet (Licensing & Copyright Librarian, Yale University).


Used in Foundational Copyright (Dec. 1 Boston; Dec. 15 Amherst)

Many works that libraries, archives, and historical societies would like to digitize are “orphan works,” that is, works for which the copyright holder either is unknown or cannot be located after a diligent search. Due to copyright risk if an owner later shows up, nonprofit libraries and similar institutions have been reluctant to digitize and make these works available, greatly limiting access to important cultural and historical information.

While a legislative fix may soon be proposed, this Article argues that legislation is not necessary to enable some uses of orphan works by nonprofit libraries and archives. Instead, U.S. copyright law’s fair use doctrine, which allows certain unpermissioned uses of copyrighted works, provides a partial solution.

Though it is an incomplete solution, fair use has some significant advantages over other approaches through which libraries and archives could make publicly beneficial uses of orphan works. Under fair use, there is no need to develop a licensing system, significantly reducing administrative and transactional costs, and eliminating socially wasteful license fees for works that are not on the market, and for which an owner is unlikely to exist. Second, fair use has the flexibility to accommodate change over time as libraries and archives discover the best ways to search for owners, preserve works, and make them available. Finally, allowing fair use of orphans by libraries and archives helps fulfill copyright’s critical purposes of promoting the dissemination of knowledge and supporting speech and free expression.

Law Research Paper 2089526






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