Blockchains, Orphan Works, and the Public Domain

Abstract: This Article outlines a blockchain based system to solve the orphan works problem. Orphan works are works still ostensibly protected by copyright for which an author cannot be found. Orphan works represent a significant problem for the efficient dissemination of knowledge, since users cannot license the works, and as a result may choose not to use them. Our proposal uses a blockchain to register attempts to find the authors of orphan works, and otherwise to facilitate use of those works. There are three elements to our proposal. First, we propose a number of mechanisms, included automated systems, to perform a diligent search for a rights holder. Second, we propose a blockchain register where every search for a work’s owner can be recorded. Third, we propose a legal mechanism that delivers works into orphanhood, and affords a right to use those works after a search for a rights holder is deemed diligent. These changes would provide any user of an orphan work with an assurance that they were acting legally as long as they had consulted the register and/or performed a diligent search for the work’s owner. The Article demonstrates a range of complementary legal and technological architectures that, in various formations, can be deployed to address the orphan works problem. We show that these technological systems are useful for enhancement of the public domain more generally, through the existence of a growing registry of gray status works and clarified conditions for their use. The selection and design of any particular implementation is a choice for policy makers and technologists. Rather than specify how that choice should look, the goal here is to demonstrate the utility of the technology and to clarify and promote its role in reforming this vexed area of law.

The Magic That Happens When Designers Get Open Access to Art – Shapeways Magazine

“Earlier this year we announced a unique design partnership with the National Gallery of Denmark (known to those in the know as the SMK). The SMK is a leader in the OpenGLAM (Open Galleries, Libraries, Archives, and Museums) movement and has made a huge amount of its art collection — pieces old enough to be in the public domain — available to the public without copyright restrictions. We partnered with the SMK to invite the Shapeways design community to create new pieces of jewelry based on six artworks selected by SMK curators. One winner and four runners up would be featured in the SMK itself, and other entries would be featured in SMK’s online shop.”

Breaking With Its Secluded Past, the Barnes Foundation Makes Half Its Art Collection Available Online

“The art collection at Philadelphia’s Barnes Foundation just got a little easier to see. The museum has announced a new Open Access program that will provide unprecedented access to its holdings by publishing over half of its objects online. Best known for its Impressionist and Post-Impressionist works, the museum’s holdings also include early Modern paintings, Old Masters, Native American fine crafts, and early American furniture and decorative art. Now, thanks to Open Access, 2,081 of the Barnes’s 4,021 objects have been published online. Of those, there are high-resolution images of 1,429 works available for download in the public domain”.

Amicus brief in support of Public.Resource.Org from a group of library associations and non-profits

“Access to the Text of the Law Advances Practical Interests of Vital National Importance….Access to the Text of the Law Is a Fundamental Right and Important National Interest, Superior to Private Copyrights….The Standards Organizations Need Not Depend on Copyright Royalties, and Can Be Fully Compensated by Other Means….Multiple Doctrines Involved in This Case Can Account for a Fundamental Right of Access to the Text of the Law….”

Adding an OA Trust to the Google book settlement

From Hal Abelson, Harry Lewis, Lewis Hyde, and Charlie Nesson: “One wonderful promise of the Google Book Settlement is that it will bring back into circulation all the out-of-print books currently under copyright. An important subset of these works are “orphaned,” meaning that their legal owners have abandoned them, died, or simply cannot be located. These works have value, and renewed public access to them will create a stream of revenue.

To whom should that revenue be dedicated?

We argue that truly orphaned works should be thought of as a part of the public domain, and that any income generated from their renewed circulation should therefore be dedicated to the public good. Moreover, as this income has been derived from renewed access to printed books, the public good in this case can well be thought of as those institutions that are themselves dedicated to access to knowledge.

We therefore propose the creation of an Open Access Trust, funded by the revenue generated by unclaimed orphaned works.

Trusts are centuries-old institutions devised to hold and manage property for beneficiaries. The essence of a trust is a fiduciary relationship. Neither trusts nor their trustees may act in their own self-interest; they’re legally obligated to act solely on behalf of beneficiaries. These rules are enforceable by the courts.

Imagine a trust dedicated to access to knowledge. The beneficiaries of such a trust would be all living citizens, globally, and future generations. The trustees, in turn, would have as their primary duty the creation, encouragement, and maintenance of institutions that serve the goal of open access, worldwide….”