If the work in question is protected by copyright and is not subject to fair use or other legal exemptions, then you will need to seek permission from the copyright holder in order to make the reproduction or otherwise exercise one of the exclusive rights granted to the copyright owner.
Whenever you are uncertain whether statutory exceptions apply to your specific situation you should either seek permission, or seek the advice of counsel before you proceed with a proposed use.
"Orphan works" describes works that are presumably still copyrighted, but whose owners may be impossible to identify and/or locate.
In 2005, the Copyright Office commissioned several studies on the topic in order to better understand the problem and identify legislative solutions.
The resulting report and new bill, H.R. 5439 "Orphan Works Act of 2006" (PDF) recommended changes to U.S. copyright law, including limiting remedies for infringement against users who have made a reasonable, good-faith, documented attempt to locate the copyright owner, and identifying remedies should the copyright owner subsequently re-appear.
Section 108 of the Copyright Act allows libraries to reproduce published and unpublished materials under certain conditions provided that a "reasonable effort" is made to determine that the material cannot be obtained at a fair price from other sources.
The scope and nature of a reasonable effort to determine that a copy in acceptable condition at a fair price cannot be obtained will always require recourse to commonly known trade sources, i.e., current publication lists or distributors of the specific medium. The reasonable effort will vary according to the circumstances of a particular situation.
If contact information for the copyright holder is available, at least one attempt to obtain permission from the copyright holder to make the desired number of copies must be made, and this attempt should be documented. The library will request from the appropriate Copyright Office or publisher the contact information for the copyright holder.
This graphic originally appeared on April Hathcock's Copyright guide for New York University, which is licensed under CC BY-NC 4.0.
In the event that you do need to ask for permission to use copyright-protected work, here are a few steps to consider taking:
If the copyright owner is an individual, you can contact that person directly. If you're unsure, you can use the publisher's website to find their permissions department. That department should either be able to process your request or direct you to the appropriate contact for the material you hope to use.
When requesting permission to use a copyrighted work make sure to be specific when describing your credentials and affiliation, the nature of your project or presentation, and how and why you plan to use the copyright-protected material. Highlight any fair use factors that act in your favor (e.g. nonprofit educational use, only needing a certain excerpt or portion of the work, etc.) while still taking care to fully and accurate explain your situation.
Nonexclusive permission may be granted informally with a verbal agreement, but exclusive permission must appear in writing with the copyright holder's signature present. You may need to be prepared to negotiate at this stage. Take a moment to look over some sample permission letters before writing your own.
Make sure you have copies of all correspondence so you are ready in the unlikely event that your use of the copyrighted work is later challenged. The records may also be useful when reaching out to other copyright holders or negotiating permissions in the future.
This page was adapted from the Copyright Advisory Services guide by Dr. Kenneth D. Crews, which is licensed under CC BY 4.0.
You can contact Musselman Library's Copyright Committee at library_copyright@gettysburg.edu.
The committee will offer a recommendation based on your situation, but the committee does not provide legal advice or serve as a substitute for consultation with competent legal counsel on matters regarding compliance with copyright law.