“Orphanhood is problematic because, without a known copyright owner, the distribution or use of a work can be legally risky. There is no way to contact the copyright owner, so the normal recourse of licensing or permissions is not available. There have been several recent reports on the impact that orphaned works have on the distribution of culture. These reports are often driven by the difficulties that arise during attempts to digitize the collections of so-called “memory institutions,” such as archives, museums, and libraries. Orphan works can include fine art, fine art and documentary photographs, commercial and documentary films, published text-based works (including books and journals), unpublished text-based works (such as letters, theses, diaries, and manuscripts), sound recordings (e.g. music, lectures, and oral history), maps, charts, and engineering/design drawings, and personal ephemera (family photos, shopping lists, etc.). Many of these products of human ingenuity end up in collections, and not all of them have a clear line of provenance. So what then?”
“To create any copy of a work, a library requires permission from the copyright owner. A digital copy counts as a copy, so digitizing works requires permission. For orphan works the copyright owner is ostensibly unknown, but the institution must show that they attempted to find the owner nonetheless. This process is known as performing “due diligence” in the parlance of copyright law. Just how much diligence counts as “due” is ill-defined in most countries, and performing these searches takes valuable time and effort, especially for institutions that house millions of items. The researchers on the UC report found that orphan works impeded efforts to provide digital access, on a copy-by-copy basis and through mass digitization, and made it difficult to digitally preserve and provide access to ‘born-digital’ content.
“Certain types of work are more prone to orphanhood than others—audio, film, photos, ephemera, and letters tend to become more quickly unmoored from their authors. This is often affected by the vulnerable nature of the material used to create the original… . Photographic prints, unsigned, are hard to connect to copyright owners, while photographic negatives without context float free. Letters may only contain a first name, with no other clues, or a long-outdated address. This form of vulnerability extends to all analog and digital recording media—video and audiotape disintegrates, digital media platforms become obsolete. Works that have little commercial value are also likely to enter orphanhood more easily, even though they may be the work that has most academic or historical value.”