Why is adopting orphans controversial?

Ever since Duke, along with Cornell, Emory and Johns Hopkins Universities, announced that we would be participants in the Hathi Trust’s Orphan Works project, I have been talking with a number of different reporters, trying to explain what the project is and why we are doing it.  I was rather pleased to see that the best article written by reporters with whom I spoke was in the Duke Chronicle, our student-run newspaper.

One of the most difficult points to explain to reporters with no background in the minutia of copyright law (and why should they have one?)  is exactly what an orphan work is.  Several interviewers have simply seen them as part of the general class of e-books, and I have had to take pains to dissect that broad concept for them.

Basically, “e-book” can refer to commercial products sold or licensed under the authority of the rights holders — this is the largest category of e-books in most library collections — and to digitized public domain works such as those included in Project Gutenberg (whose founder Michael Hart died recently).  In between are orphan works, a third category of works defined, in some sense, by the fact that they do not fit into either of the other two.  Orphan works, whether in print or digitized, are books that are still protected by copyright (not public domain) and yet for which no rights holder can be located or permission for use obtained.  That’s really the key point about orphan works — there is no one to ask for permission, no one who can be found who is commercializing the work or even has the right to do so.  The options for these digital books is either total obscurity, or access under fair use; there is no third alternative.

The rights holders for orphan works probably fall into two categories.  The first is publishing firms that have gone out of business and for which there is no record of a “successor in interest.”  The other are the heirs of individual rights holder who have died without explicitly directing the disposition of their intellectual property.  Identifying a work as an orphan involves a reasonably diligent search to determine if a specific work still has an identifiable rights holder or if, in the absence of other evidence, it falls into these “orphaned” categories.

Making the digital files of orphan works held in Hathi Trust available to restricted scholarly audiences should really be a no-brainer.  The absence of any market that can be harmed, combined with the limited educational and research use, makes the fair use case quite easy.  So I was curious to see that one short article about the project called it “controversial,” while this online forum invited readers to vote on whether or not it is “within copyright law.”  I would very much like to know where the controversy is, and what reasons those who have voted “no” in the poll have for their opinion.  I suspect there are some significant misunderstandings about the project behind those votes.

Whatever controversy there may be apparently exists because of a single quote, printed in the Chronicle of Higher Education when Hathi and the University of Michigan first announced the project, which called the project illegal and the product of “elfin whimsy.” It was the kind of ill-conceived remark that I think anyone who talks to reporters dreads blurting out without proper reflection.  But it is important to understand that there is no whimsy at all behind the project or the decisions made to participate.  All of the participants have discussed the situation with both campus lawyers and academic administrators.  Each, to my certain knowledge, has made a careful and responsible decision.  On each campus, I believe, the same fundamental realization has dawned — this project is not a risk, either to the schools or to the legitimate interests of publishers, nor the product of a radical interpretation of the law.  It is exactly the core of what fair use was developed to accomplish.