The Rights You Cannot Trace: Orphan Works, Mass Digitisation, and the Cultural Institution's Problem
By Casey Scott McKay ·
A cultural institution holds millions of items and can identify the rights holder for a small fraction of them, which is the central operating problem of the field and one the statute never solved. This article works it. It covers what section 108 actually permits, which is narrower than institutions assume, and where fair use does the work the exception does not - through HathiTrust and the Google Books litigation. It then works the orphan works problem itself: what a diligent search is, why it produces no safe harbour, and how risk tiering substitutes for a clearance that cannot be completed. It closes with public domain determination, deeds of gift and donor restrictions, indigenous cultural expression, and the takedown policy that makes the whole programme workable.
IP and Technology > Copyright | Article | Published 28 June 2024 - Updated 7 July 2026 | Casey Scott McKay - marksy.us
Summary. A cultural institution holds millions of items and can identify the rights holder for a small fraction of them, which is the central operating problem of the field and one the statute never solved. This article works it. It covers what section 108 actually permits, which is narrower than institutions assume, and where fair use does the work the exception does not — through HathiTrust and the Google Books litigation. It then works the orphan works problem itself: what a diligent search is, why it produces no safe harbour, and how risk tiering substitutes for a clearance that cannot be completed. It closes with public domain determination, deeds of gift and donor restrictions, indigenous cultural expression, and the takedown policy that makes the whole programme workable.
Keywords: orphan works · diligent search · mass digitisation · section 108 library exception · preservation copies · fair use for libraries · HathiTrust · Google Books · public domain determination · duration and restoration · deed of gift · donor restrictions · unpublished works · indigenous cultural expression · repatriation · image licensing of public domain works · Bridgeman · rights metadata · takedown policy · risk tiering
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