Permissions, licenses, out-of-print & orphan works

Permissions, licenses, out-of-print & orphan works

Last updated 19 October 2017.

What if you want to use more that what is legally considered fair use? Or, what if a book or journal is no longer in print? Or, what if you cannot find the creator or distributor of a work? And what about copyright and usage rules when making license agreements with vendors? Here are resources on obtaining permissions for use — which might indeed require payment — as well as how to research and evaluate out-of-print and orphaned works for usage.
You will frequently encounter situations where you will need to seek permission to use a copyrighted work. Sometimes during that search, you might find that the work is out-of-print, or the original owner or distributor is no longer around. Sometimes the work will be music or video, which carry their own set of permission-gathering investigations. Furthermore, you might need to focus policies and agreements for your organization when working with vendors of databases, ebooks, and other digital content subscriptions — where fair use and DRM issues become paramount.

Also see the articles on determining copyright, fair use, DRM/DMCA, and open access, as they contain related resources.

Online resources

Copyright Clearance Center’s (CCC) advanced search helps to estimate costs and secure permissions for copyrighted print works (books and periodicals):

  • You can select for the type of purpose (educational, business, personal, etc.), number of copies or users, as well as a wide variety of dissemination methods (interlibrary loan, one-time print, online courses, sharing, and much more).
  • Can be helpful for obtaining permission and paying for some out-of-print works, too
  • Also has a tutorial, Campus Guide to Copyright Compliance for Academic Institutions, that offers guidelines on ereserves and interlibrary loans.

Best Practices for Locating Copyright Owners of Photographic and Visual Art, by Marshall & Wrynn (22 September 2015) for the American Society of Picture Professionals (AAPP).

Firms Out of Business (FOB) is a searchable database of companies and organizations that have been bought out or shutdown. Useful when trying to investigating the publisher/distributor of a potential orphan or out-of-print work.

Spreadsheets documenting orphan work research are your friend, especially if later down the line you encounter a take-down notice:

  1. Identifying the copyright owner: Not only find names and contact information, but also the amount of time spent during research, dates of action, estimated risk level, and any additional relevant documents and information. This would include any public web or database searches, copyright searches, or business look ups.
  2. Contacting the copyright owner, applying the techniques in step 1, as well as noting resources found, estimated costs, and decisions made — namely whether or not to pursue and use the work.

Resource Packet on Orphan Works: Legal & Policy Issues for Research Libraries (PDF, 13 September 2011), prepared by the Association of Research Libraries (ARL).

Statement of Best Practices in Fair Use of Orphan Works for Libraries & Archives, by CMSI (December 2014).

Termination of Transfer tool, developed by the Authors Alliance and Creative Commons, aids creators in regaining copyrights over their works from publishers (or studios, etc.).

TinEye provides image searching, to see if and where your own or your organization’s (or another’s) image are used online — good for tracking improper usage and helping obtain permissions.

The WATCH File (Writers, Artists and Their Copyright Holders) explains how to locate copyright holders in order to obtain permission.

Articles & books

Digitizing Orphan Works: Legal Strategies to Reduce Risks for Open Access to Copyrighted Orphan Works (D. Hansen, 2016) compared the issues of digitizing OA and orphaned works.

Copyright & Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums (2009), by Peter B. Hirtle, Emily Hudson, and Andrew T. Kenyon, is a PDF book available for free under the Creative Commons BY-NC-ND 3.0 US license. It’s particularly important when dealing with vendors of databases and subscriptions to other licensed content — as well as for locating copyright holders and securing permissions for using copyrighted materials:

  • Table 7.1 (pp. 143-147) could help when dealing with database and other subscription-based vendors
  • Table 8.1 pp. 160-162: Checklist for seeking major copyright owners
  • Sample permission requests: pp. 138-140

Guidelines & advice on vendors

American Association of Law Librarians offers good guidance on understanding fair use, copyright, and permissions when developing license agreements with vendors:

ARL Encourages Members to Refrain from Signing Nondisclosure or Confidentiality Clauses (J. Blixrud, 5 June 2009), in the spirit of promoting library and vendor transparency, for the good of the LIS organization and its patrons! Transparency helps advocate fairness, and hopefully better understanding of intellectual freedom and intellectual property — including fair use. Some key examples of universities exercising this policy:

Challenges to Licensing from Some Publishers (I. Anderson, 14 January 2015), from the California Digital Library.

Nothing Personal: How Database Licenses Make Pirates of Us All (B. Fisher, 11 July 2011), on the copyright stringency of said subscriptions.

Vendor Relationships (B. Katz, 18 June 2014), on experiences while entering into subscription contracts. Again, advocating transparency is important.

eBooks & DRM

Douglas County Libraries (DCL) created an innovative way of dealing with ebooks and the myriad issues of DRM from multiple ebook vendors: Rather than paying to rent the ebooks from the distributors, DCL develop a way to buy the ebooks, thus simplifying the licensing, loaning out, and DRM issues:

The Open Library project, run by the Internet Archive, seeks to increase its holdings by including more orphan works as ebooks, according to their 2017 ALA presentation (via Readers First).

ReadersFirst Guide to Library Ebook Vendors (PDF, January 2014 ) aims to help make libraries “more effective e-book providers,” by comparing features of and assessing major ebook vendors, such as 3M Cloud Library, Baker & Taylor, EBSCO, Gale, Ingram, OverDrive, and ProQuest.

Permissions for media & digital libraries

Copyright, Permissions and Fair Use in the Visual Arts Communities: An Issues Report, from CMSI (February 2015).

Obtaining Copyright Permissions for Film, a pathfinder from the University of Michigan Libraries.

Principles to Guide Vendor/Publisher Relations in Large- Scale Digitization Projects of Special Collections Materials (PDF, June 2010), prepared by ARL.

Securing Permission to Digitize and Display Collections Online, a guide from the Digital Library of Georgia.

There are several institutions for securing permissions on using music:

  • For performing music, go to ASCAP (American Society of Composers, Authors and Publishers), BMI (Broadcast Music, Inc.), or SESAC (Society of European Stage Authors and Composers).
  • Songfile is for new and DIY composers who wish to obtain permission for new and derivative works, like cover songs.
  • SoundExchange, run by RIAA (Recording Industry Association of America), collects fees for digital distribution of sound recordings, such as Internet radio, cable, satellite television.

CC BY-NC-SA 4.0 Permissions, licenses, out-of-print & orphan works by Sarah Liberman is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.

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