This unit is devoted to special cases and will be updated from time to time as legal issues evolve surrounding them. When managing copyright issues related to scholarly work, two cases have been identified as requring specific attention: Copyright Protection of Foreign Works, and How to Manage Copyright on Orphan Works.
Copyright Protection of Foreign Works
If you are in the U.S. and you are trying to determine the copyright status of a foreign created work, then the first presumption is that U.S. law applies to make that determination.
The Berne Convention, an international treaty, dictates a principle of National Treatment. National Treatment provides a form of reciprocity amongst member countries so that a foreign work will be protected in the U.S. in the same way and upon the same standard as would a work created within the U.S. Similarly, U.S. works would be given the same privilege of protection under the laws of any other member country of Berne. The U.S. in amending its laws became a member of the Berne Convention in 1988. There are now 187 countries that are members of Berne.
Thus, the second presumption is that so long as you are carrying out your substantive scholarly work in the U.S. you should apply U.S. copyright law to make your copyright determinations on your own work and the work that you may be integrating into your own as an underlying work.
Additional issues may arise such as when you work with international partners, where work is created across borders and jointly amongst collaborators, particularly where collaboration or distribution takes place online. Consult Copyright Advisory Services for further guidance on these issues. Come to Office Hours, or send a request for an appointment.
Treatment of Orphan Works
Orphan works are defined as copyright protected works where you cannot identify a copyright owner or where you can identify the copyright owner but the owner cannot be located. Consider the following examples:
1. You cannot identify a copyright owner
The work itself does not have a name, and you have searched through various different catalogs, databases, and other sources, according to the title or description of the work. Under copyright law, anonymous and pseudonymous works are still fully protected. Simply because you cannot find the name of the copyright owner does not mean that it is not under copyright. Nevertheless, you are left to ponder whom to ask for permission. Similarly, you may well be able to identify the original author or copyright owner, but that individual has died, or the company has gone out of business. You have not been able to track any heirs or successors.
2. You cannot locate the copyright owner
Alternatively, you have concluded that the work is protected, and you have been able to identify the likely copyright owner, but you simply cannot find that person or entity. No listing appears in any of the usual reference guides or directories. You also have conducted a search of the records of the U.S. Copyright Office, and you have found no current registration of a copyright claimant or any documentation assigning the copyright to a new owner. Perhaps the original copyright owner was a company or organization that ceased doing business years ago, and you have not been able to find any person or entity that currently holds the rights. Perhaps the copyright owner died, but the heirs are untraceable. The copyright, nevertheless, lives on.
3. Works Released Online or through social media
Because copyright runs for a significant period of time and does not require formalities such as registration or renewal to ensure that a work is still protected, many works are often divorced from the rights information necessary to seek and obtain permission. This is becoming an increasingly difficult issue as it relates to scholarly communications because many works are being released online or through social media without identification or rights data associated with the works. For scholars, journalists and other academics, it becomes increasingly difficult to authenticate sources in the online environment. And, even if you wished to use the work fairly in the context of your scholarly work, you may be hard pressed to provide adequate attribution, a necessity in exercising fair use.
No Easy Fix
Since 2005, the U.S. Copyright Office has tried on several occasions to develop policy and introduce legislation into Congress to deal with orphan works adequately. So far, none of these efforts have succeeded. The question, therefore, remains, how can you combat and manage the growing issue of orphan works within the context of your scholarly communications?
Conduct a risk-benefit analysis
You have diligently investigated your alternatives. You do not want to change your project, and you remain in need of the elusive copyright permission. The remaining alternative is to explore a risk-benefit analysis. You need to balance the benefits of using that particular material in your given project against the risks that a copyright owner may see your project, identify the materials, and assert the owner’s legal claims against you. Numerous factual circumstances may be important in this evaluation. The “benefit” may depend upon the importance of your project and the importance of using that particular material. The “risks” may depend upon whether your project will be published or available on the Internet for widespread access. You ought to investigate whether the work is registered with the U.S. Copyright Office and weigh the thoroughness of your search for the copyright owner and your quest for appropriate permission.
Undertaking this analysis can be sensitive and must be advanced with caution and with careful documentation. You may be acting to reduce the risk of liability, but you have not eliminated liability. A copyright owner may still hold rights to the material and may still bring a legal action against you, based on copyright infringement. Your good faith efforts can be helpful, but they are not necessarily protection from legal liability. Members of the Columbia University community should consult with Copyright Advisory Services or University Office of the General Counsel for assistance with this decision.