[Video]:
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Kim, I know you've been studying the issue of orphaned work in the past couple years. Could you please explain what orphaned works are and why they matter? 

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Fade in image appears: Kim Gainer is sitting centered on screen holding an iPad with the words Orphan Works displayed on an iPad.

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A text overlay appears on screen. It reads: Kim Gainer, Orphaned Works.

[Audio]: 
Hi, my name is Kim Gainer. I teach English at Radford University, and I'm here today to talk about my word, my phrase, orphaned works. Let me spin a scenario for you. Imagine a situation where copyright is carefully tracked; copyright is carefully renewed every few years; and a written record is made of who holds the copyright--that's the way it used to be. Over the years, though, things have changed, and basically people have had copyright presumptively without taking any action. They create something; they have got copyright. Well, that's very convenient, but the problem with that is there isn't necessarily a registration. There isn't necessarily one place where you can go to determine who holds a copyright, and as the years pass the knowledge of who originally owned the copyright, well, it gets lost. So, you end up with a situation where you have, indeed, these orphaned works. That is, there is something that probably should be copyrighted, but you don't have any way of tracking who that person is so that if you want to use this copyrighted material, well, who do you go to get that permission? Alright, let me illustrate this.

[Video]: 
Kim pushes buttons on iPad

[Audio]: 
 Ooops…first of all let me mess up my… 

[Video]: 
New words appear on the iPad screen they read: FAIR USE.

[Audio]: 
There, ok. First of all, let me stress that I am about to use a couple of images one of which is probably out of copyright, so it's in the public domain and I'm safe. The other one probably is copyrighted; it's an orphan. However, because I'm using it to illustrate the concept of orphaned works I'm going to claim fair use--that's the only thing that is going to save me. But, unfortunately, that's not enough very often if you want to make very extensive use of something that's copyrighted but orphaned you're just simply out of luck. 

[Video]:
Kim pushes buttons on iPad the numbers 1895 appear on the iPad screen. 

[Audio]: 
Let's start with something that was created in 1895, it is a photo…

[Video]:
Kim pushes buttons on the iPad and a black-and-white image appears. It depicts a group of children posing in front of a brick building.

[Audio]: 
And here I'm trying to be very, very clever. I decided to pick a photo of youngsters most of whom are orphans. Now, since this photo was taken in 1895 the fact that we don't know who the author is is not a problem: it is definitely in the public domain. I want to contrast that with something, a photo, that was taken in 1938. 

[Video]:
Kim pushes a button on the iPad and the number 1938 appears on the IPad screen.

[Audio]: 
That's trouble. 1938, eh, that's definitely going to be copyrighted assuming we know who created the photo. 

[Video]:
Kim pushes buttons on the iPad a black-and-white image appears that resembles the first photograph. It depicts a smaller group of children posing in front of a set of doors to a building.

[Audio]: 
Now, this is another picture of orphans. Again, just like the earlier one the author is unknown. At some point, maybe the name was attached to the picture, but it is lost now. So, let's say that you would like to republish this photograph. Let's say you would like to bring it out in a book; your publisher is probably going to get very, very nervous. And, in cases like this, in the end here the publishers very often will simply say, well no, the provenance of that photo is unclear. We do know the date, and so it gets lost to scholarship--it gets lost to the public. 

Sometimes these things are very, very [unclear] in a way. You get a situation, for example, when you have a family photo taken by a photographer in a studio that's gone out of business and you can't trace the photographer. You take it to your local drugstore, you want to make a copy of it, well, the pharmacist at the local drug store is going to say no dice, I'm going to be violating copy[right], I don't want to get involved in that, go away. And, it languishes on the copy. Now that may sound kind of trivial, but studies of archives in both Europe and the United States come up with estimates of orphaned works in the tens of thousands, in some cases some estimates go into the hundreds of thousands. So you might think, "Oh, too bad you can't make a copy at your local pharmacy," but in fact what is happening is that significant portions of our culture are simply placed off limits because of this issue. Of the books that have been published over the years, again we are talking in the hundreds of thousands, only a few are currently in print and the others are simply lost to us. So this is why I picked this term orphaned works because it really refers to an enormous body of work, music, films, photographs, traditional printed books, but an enormous body of work that's languishing--it's locked up, it's in the archives, it's in the libraries--but in terms of being able to widely distribute it, to be able to publish it, we simply can't--they are orphaned. 

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