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Special Collections Orphan Works Policy

This policy provides the framework for making decisions regarding the reproduction of materials that are in copyright but for which no copyright holder can be found. These materials are therefore understood to be ‘orphan works’.

1. Scope

The ÄûÃÊÊÓƵ’s Special Collections hold a range of archives and documents that are currently in copyright. These items fall into three categories:

• The copyright in the work is owned by the University (either by being the original copyright holder or having had copyright assigned)
• The copyright holder is held by a third party who is known and contactable
• The copyrighted work is an ‘orphan work’ defined as ‘creative works or performances that are subject to copyright… for which one or more of the right holders is either unknown or cannot be found.’ 

This policy will also apply to items in the Library’s Legacy Collections which may be considered orphan works.

2. Responsibilities

When an academic researcher or member of the public request a copy of an item in copyright, unless their request falls under a fair-dealing exception, they are required to undertake a due diligence search to seek out and contact the copyright holders for permission. When the requestor is able to provide evidence of copyright clearance we are able to provide a copy of the item(s), however on occasions that they are unable to provide copyright clearance but can prove they have undertaken a due diligence search we need to decide whether we can allow a copy of the item(s) to be provided.

The University is required to balance out the need for allowing reasonable adherence to requests given due diligence, with the potential for action being taken against the University by a copyright holder for not protecting their copyright. This may lead to financial and/or reputational damage for the institution.

When considering publishing orphan works material through its own channels or partner platforms such as JSTOR it will assess the risks. Such material will only be published when it is considered low risk.

3. Policy

Decision making process for requests

In instances where we asked to provide copies of orphan works in copyright the following courses of action will be taken:

The risk of each request will be assessed then:

• Where a due diligence search has been undertaken and the risk is calculated as low, Special Collections will give consent.
• Where a due diligence search has been undertaken and the risk is calculated as medium, the Librarian will take a decision on consent.
• Where a due diligence search has not been undertaken and the risk is calculated as low, consent will not be given.
• Where a due diligence search has been undertaken and the risk is calculated as high, consent will not be given.

Decision making process for publishing

All publishing decisions will be driven by the need to make our collections accessible for teaching and research and ensuring our stewardship can maximise public benefit. Orphan works will not be reproduced for commercial purposes.

Publishing orphan works will only be considered where a due diligence check has been carried out or there is insufficient information to make such a search viable.

In instances where we wish to publish orphan works online or in print media the following three factors will be assessed on a case by case basis:

• What is the likelihood of a rights-holder making a complaint?
• How serious would the breach be considered if discovered?
• How discoverable is the published work?

Orphan works will only be published when all these factors are considered to be of low risk. Consideration may also be given to whether the publishing process can be reversed.