Basically an orphan book is one whose author has gone missing. The Copyright Office has defined an orphan work as “any original work of authorship for which a good faith prospective user cannot readily identify and/or locate the copyright owner(s) in a situation where permission from the copyright owner(s) is necessary as a matter of law.” In the past such works presented less of a problem, mainly because copyright holders had to make an effort to to assert and renew their rights. The current assumption that a work is automatically copyright, and the automatic renewal of that copyright have created a group of works which remain in copyright although there may actually be nobody there to benefit from that right.
The problem is that making unauthorized use of a copyright work can bring a large fine if the ghostly author emerges from the shadows after your work has become a success.
Books, whether by activist or by invisible authors, do go out of print (not so much nowadays perhaps with the development of print-on-demand and digital storage); publishers do go out of business; even without that excuse they have been known to lose addresses and other paperwork; they often get taken over and subsumed within other organizations; authors do move house and fail to notify the publisher of a book they did years ago; authors have been known to want to disavow books they published in their youth; authors have been known to die intestate and impoverished. In some ways it’s rather surprising that there aren’t more orphan works. Just how many orphan books there might be is impossible to know: think how you might go about establishing a number. Wikipedia tells us that it was estimated in 2009 that there were 25 million orphan works in British public libraries, but this includes non-book items like photos and folk music.
Apparently Congress came close to adopting orphan work legislation in 2008, but of course they didn’t. The legislation would have worked by limiting the liability of an “infringer” who had made a diligent effort to locate the copyright owner, which remains the Copyright Office’s preferred, and quite sensible remedy. La lutte continue.
The Copyright Office continues to engage with the problem, adding to their liability limit remedy described above, a more controversial Extended Collective Licensing (ECL) proposal. Their Report can be found at the tab on the right hand side of the page linked to, labelled Full Report. Here’s comment from Cory Doctorow on the Copyright Office’s ECL plans, and here’s The Digital Reader’s round up of the issue, with lots of links. (I rather suspect that many of the objections cited here may have been taken into account by the Copyright Office in their final report.) The UK set up such an arrangement in 2014. The ECL idea looks similar in essence to the proposal under the aborted Google Settlement that royalties for digitized works would be collected centrally and distributed to relevant copyright owners by an agent established under the settlement. I don’t know that there’d be much objection to such a scheme if it only covered orphan works, but to scale it up and make it economically viable the Copyright office proposes extending it to all digital database scanning. Now it is undoubtedly true that it’s too expensive to obtain permission for the scanning of some works even where the copyright owner is identifiable and locatable. The potential revenue is just less than the cost of obtaining permission, which effectively means that access to the few people who’d benefit from the content is denied by market forces unless there were some general remuneration system.
We come across the tragedy of the commons everywhere. Here it is preventing the digitisation, and thus effective availability, of a whole age-cohort of books, orphans and weaklings together. TechDirt reports on the hole in culture thus caused by our copyright laws. I wonder if a solution might be found in some sort of compulsory public-domain-licencing after sales of a book drop below a certain level for a few years: in other words a sunsetting feature in the next copyright law revision. Nowadays we surely have the technology to track something like this. Allied to an ECL operation this might not be unacceptable to many authors.