There is a lot of mumbling about orphaned works at the moment. This isn't the place for me to to pontificate at length about the Google Book Settlement (GBS) as (a) I have work to do and (b) there is enough pontificating on GBS already, so there's no urgent requirement for any more. But the issue of orphaned works is not just a GBS issue. Under a proposed change to the Digital Economy Bill, it would become impossible for libraries to digitise orphaned works in their collections. (The DE bill is a UK bill - if you're not in the UK, the following may not be very interesting - but the principle is still worth thinking about.) Does this sound dull? Well, it's not. And if you are a writer it is of huge importance to you, so keep going.
An orphaned work is one whose parents are dead. It has been sent to the workhouse and must work 18 hours and day and eat gruel. Not quite. An orphaned work, like a lost child in post-earthquake Haiti, is one whose parents may or may not be dead, but can't be identified or traced.
An orphaned work out of copyright is no problem. If it is clear that the copyright holder (usually the creator) must be dead - because the work was written in 1630, for instance - the work can be digitised. But if the work is definitely not out of copyright - a letter written in 1960, for instance - it's more complex. In the case of a letter, we usually know the author's name (unless it's signed 'mum' or 'your bunnykins'), but may not be able to trace that person or their descendants. In the case of a photo, drawing, or piece of unattributed writing, we may not know the name of the copyright holder.
Why does it matter whether we can digitise these things? As writers, we spend our time creating a past or present (or future) that is not our own. Whether we are writing fiction or non-fiction we need access to the lives, thoughts, experiences and discoveries of others in order to create plausible or accurate accounts. Without research materials, each writer has only one life to draw on for insights into the human condition - but through reading we have access to a vast store of accumulated experience that helps us to identify which parts of ourselves are 'core human' and which are individual. And from that insight we can create characters, or write about real people, convincingly and accurately. These orphaned works - personal accounts, letters, diaries, photos, sketches - are a hugely valuable resource. It's not easy to know what is available without trawling the catalogue of every library in the land. But if these documents can be digitised, they can be available to everyone who might be able to use them.
Of course, we should ring-fence their use in case the copyright holder turns up. It must be possible to reimburse the copyright holder if appropriate, and to withdraw anything they don't want made available. Digitising this mass or material makes it more likely that some copyright holders will come forward, and then they may be able to give more of a context to the sources, increasing their value to researchers. There should perhaps be other safeguards, protecting not just copyright holders but people mentioned in documents or shown in photographs. But the principle of making these orphaned works available as a resource is surely sound.
But the definition of an orphaned work depends on the assumption that the work is from a single-parent family. The only recognised parent is the copyright holder. The Digital Economy Bill assumes that the copyright holder is the producer of a work, but this is not always the case. I am the author of some technically 'orphaned' works, but I am definitely alive and traceable. When I have written a book and signed over copyright (not uncommon in children's non-fiction) and the publisher has then gone bankrupt, with no rescue or buy-out of assets, the copyright holder has vanished, but the work is still in copyright. I'm not sure I would be happy about those works being digitised and made freely available. An orphan has lost both parents. An orphaned work, as currently defined, has lost one: the copyright holder. But there is another parent, and that is the moral rights holder.
As the author of a work in the UK, you automatically have moral rights unless you waive them. You can't assign them to someone else; you can give them up or keep them. The DE Bill does not cover moral rights, and I'm not sure anyone has looked at how it may have an impact on them. As moral rights have no commercial value, they are of no great interest to those concerned with the valuable property of copyright. But for authors and illustrators, moral rights are very important. It is vital that the creator's name, if it is known, be linked to each digitised work whether or not the creator is the copyright holder. There doesn't seem to be any provision for insisting the name is in the metadata of a digitised work.
Moral rights extend beyond attribution though. Let's suppose - for argument's sake - that a fundamentalist Christian library digitised a work of mine that was orphaned (in that the publisher has vanished without trace). Could they take parts of my work out of context and, simply through the act of cataloguing them with carefully chosen other works, use them to promote a view I don't share or ridicule a view I support? Is digital context something that a moral rights holder can object to?
Many works are the child of a single parent, but not all. I'd say that if one parent is dead, we should look for another before putting the orphan up for adoption. If no copyright holder can be found, but the moral rights holder (creator) can be found, that parent should be granted sole responsibility for deciding the child's fate. It's just like the old days, when a widow could not determine the fate of her own children. Well, virtual widow as I am, I want to stand up for my fatherless, but not orphaned, children.