Statement of Best Practices in Fair Use of Orphan Works for Libraries & Archives | Center for Media & Social Impact
"Libraries, archives, institutional custodians of record and other non-profit organizations that preserve memory serve as stewards for a large share of the world’s cultural, historical, and scientific record. While performing many distinctive functions and often working within larger organizations, the professionals who dedicate themselves to preserving memory also share common purposes and challenges. In this document, we refer to them collectively as “memory institution professionals.” These professionals’ individual objectives derive from the shared mission of their institutions. Preserving a treasury of primary resources consisting primarily of unpublished documents, ephemera, and other unique items, and providing access to it for research, scholarship, and the advancement of knowledge are core features of that mission. When these resources are both securely housed and widely available, an important social interest in facilitating researchers’ and the broader public’s understanding of the knowledge contained in these collections is fulfilled. Digital technology gives memory institutions an opportunity to safely store their collections in ways that also create opportunities to give ever-greater numbers of people the benefit of them. By this means, the institutional objectives of the organizations in which memory collections are located (from larger research libraries to small specialized archives) are also advanced.1 Some collections held by memory institutions consist primarily of items old enough that copyright presents few practical challenges. Other collections may be sufficiently homogenous, and closely enough associated with a particular source, that it makes good sense to seek rights clearances before proceeding to digitize or make them accessible. A number of collections, however, lack such homogeneity, and include items from many sources. In particular, many collections include numerous “orphan” works, which are difficult or impossible to associate with active rightsholders who might give permission for their use.2 Some rightsholders may have been corporate entities that have ceased to exist. Other rightsholders may once have been locatable, but have become difficult or impossible to find today. Some likely did not create works with copyright in mind, and had no reason to remain available for inquiries. This document considers the role that the doctrine of fair use may play in helping to resolve the copyright dilemmas that dealing with such collections can present. It addresses specifically how libraries, archives, museums, and other memory institutions can proceed with respect to collections that, based on professionals’ expertise, clearly appear to contain significant numbers of orphan works ..."