Selecting books based on date of publication does not guarantee the that work is in the public domain, but it is an efficient way to use readily available bibliographic data to increase the chances, which in combination with CDL as an access strategy could lower overall risk of making those books digitally available.
- 2.Out of Print and Off the Market
The phrase “out of print” does not mean “out of copyright.” In fact, many out of print works may still be under copyright. However, the out of print status of a book is meaningful for the fair use analysis. A key, though not necessarily determinative factor in fair use is whether or not the work is available to the potential user. If the work is out of print and unavailable for purchase through normal channels, the user may have more justification for reproducing it.”[1] A library might lower risk by selecting works for CDL implementation that are clearly not available in the marketplace, either “in print” from the publisher or electronically as a licensed e-book. Selecting these works has the practical risk mitigation strategy of also reducing the risk that anyone will bring suit in the first place—if the work is not currently exploited by its owner, chances stand to be higher that whoever that owner is isn’t particularly concerned with use of it by libraries.
How to actually determine which books are not currently commercially exploited requires some investment of time and resources. Databases such as Bowker’s Books in Print, and online searches through Amazon or Addall.com may be sufficient to give an indication that titles are no longer exploited through normal commercial channels. For older books, especially those without ISBNs, searches are more challenging.[2]
A second and far more severe category of “off the market” books are orphan works, which are works protected by copyright but which a user cannot, after a diligent search, identify the copyright holder.[3] Although there have been
- ↑ S.Rep. No. 94–473 (1975); Maxtone–Graham v. Burtchaell, 803 F.2d 1253, 1264 n. 8 (2d Cir. 1986) (out-of-print status of copyrighted book supports fair use determination); see also Part III(D)(2) (market failure for 20th century books should favor fair use determination).
- ↑ Low risk works published in the 1920s through the 1960s, if they have not been reissued after 1970, would not have an ISBN number, and so there is likely no present commercial exploitation. See Elizabeth Townsend Gard, “Creating a Last Twenty (L20) Collection: Implementing Section 108(h) in Libraries, Archives and Museums” (October 2, 2017). Available at SSRN: https://ssrn.com/abstract=3049158 or http://dx.doi.org/10.2139/ssrn.3049158
- ↑ See Library of Cong., Copyright Office, Notice of Inquiry: Orphan Works & Mass Digitization, 77 Fed. Reg. 64555 (Oct. 22, 2012), https://perma.cc/6MHS-FZAH . (defining an orphan work as “an 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.”). See also Hansen, supra note 15.
