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Request for proposal

Request for Proposal (RFP):

Writing a literature review on strategies for digitizing orphan works for open access.

Release date for this RFP: April 16, 2015 Due date for responses: May 30, 2015 Start date for the work: July 1, 2015 End date for the work: January 31, 2016

Issued by: Harvard Library Office for Scholarly Communication (OSC)

The project will be supervised by Peter Suber, Director of the Office for Scholarly Communication.

Proposal requested

The Office for Scholarly Communication seeks bids or tenders from scholars interested in writing a comprehensive literature review on the question whether there are lawful or low-risk strategies to digitize orphan works for open access under US copyright law, with special attention to methods that do not depend on fair use.

The author must have a JD degree or equivalent, proven skills in legal research and writing, and special strengths in US copyright law and legal issues raised by orphan works, open access, and mass digitization.

By "open access" (OA) for this purpose we mean global, digital, online access that is free charge, with or without open licenses permitting forms of reuse beyond the limits of fair use.

The literature review will identify legal arguments and strategies for reducing or eliminating legal risk from projects to digitize orphan works for OA under US law. It will identify arguments that have been used in court, strategies that have been used in practice, and arguments and strategies proposed in the literature, giving special attention to those that do not depend on fair use. (The project does not assume that fair-use arguments are unpromising, merely that they have already been well-studied.) It will review relevant statutes, regulations, case law, and legal literature to evaluate the adequacy of those arguments and strategies. The study should also look at legal strategies adopted in other countries insofar as they suggest strategies that might work in the US. It should identify institutions inside and outside the US that have already digitized orphan works for OA, what strategies they used, and what legal consequences they faced for doing so. Whether or not the study uncovers no-risk methods to digitize orphan works for OA, it should identify methods to reduce legal risk. It should conclude with recommendations on methods or strategies, if any, that would be no-risk or low-risk under US law.

The question for the literature review is not what amendments to the copyright statute would best solve the orphan-works problem. Nor is it how far or how well fair use could solve this problem. The literature review should understand the fair-use case law and analyses, but look in particular for other types of tried or proposed solutions. In addition to looking for strategies to reduce the risk of litigation or damages, it should look for arguments for judge-made exceptions to the statute, based on the equities and special circumstances of orphan works, or based on analogies to other branches of law raising like questions.

We also encourage the author to identify promising arguments or strategies that have not already been tried or proposed.

When the literature review reaches this stage, the project will ask a panel of experts to evaluate it and recommend any revisions. When the author has satisfactorily responded to the comments from the panel, the project will make the final revised version public, with full attribution to the author and the names of the members of the panel.

The literature review must be submitted to the panel for evaluation by January 31, 2016.

Submitting a proposal

We envisage that the literature review will take about seven person-months. Candidates should take this into account when developing their proposals.

Candidates should describe their qualifications to do the work and the amount they request to do it in the time allowed (July 1, 2015 - January 31, 2016). We encourage candidates who have published related work to cite and link to it in their submissions.

Please submit the bid or tender, or any inquiries, by email to Arlene Navarro at

The submission deadline is May 30, 2015.