Minow:  Tell us about the new Orphan Works: Statement of Best Practices by the Society of American Archivists.

Briston:  Our goal was to empower archivists and give them a framework and described a reasonable effort for investigating the ownership of items under copyright. We also set it within the larger context of other legal rationales, such as fair use and public domain. Also, as archivists we view ourselves as advocates for use and access to unpublished materials, and thus the statement focuses there. However, we do feel that many of our techniques could also be used for published materials.

The statement was a collaboration of the members of the Society of American Archivists’ Council’s Working Group on Intellectual Property, archivists with expertise in literary manuscript collections, and the valuable assistance of Peter Jaszi, director of the Glushko-Samuleson Intellectual Property Law Clinic and Professor of Law at American University. Financial and administrative support was provided by RLG Programs, OCLC Research and the RLG Partnership. The idea for the statement came out of SAA’s earlier participation in the Orphaned Works Roundtables held by the Copyright Office, and the subsequent report and proposed legislation coming out of those Roundtables.

Minow:  What were some of the toughest issues your group faced in coming to consensus?

Briston:  Our biggest challenge was to create a statement on a complex issue, with multiple facets and shades of grey, when we know that our audience wants as much certainty as possible. The diversity of an archival collection complicates the already complicated issue of determining copyright status. To address these challenges we strove for clarity, although we could not simplify, using examples, diagrams, and providing a framework.

Minow:  How do you hope it will be used?

Briston:  We hope archivists and others with unpublished materials will use it as a framework to think about an orphaned works analysis, and make their own informed judgments about reasonableness and risk relating to various types of use of materials in collections. Archival materials are collected and preserved so that they can ultimately be used, often that includes publication, possibly this will encourage review of some materials in collections for potential use and wider access.

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Heather Briston is the Corrigan Solari University Historian and Archivist at University of Oregon. She chairs the Society of American Archivists’ Council’s Working Group on Intellectual Property which was part of the committee that drafted the Orphan Works: Statement of Best Practices

Mary Minow is the Content Editor for the Stanford Copyright & Fair Use site, which links to the Best Practices in its Charts and Tools page.