Submission to Consultation on Copyright: Orphan Works

A few weeks ago, I wrote about the publication of the UK government's Consultation on proposals to change the UK's copyright system in the wake of the Hargreaves report. As promised, I have included below part of my forthcoming submission. I've...

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A few weeks ago, I wrote about the publication of the UK government's Consultation on proposals to change the UK's copyright system in the wake of the Hargreaves report. As promised, I have included below part of my forthcoming submission. I've decided to break this up into several posts to keep article length manageable; the first part concerns one of the most important recommendations of the Hargreaves team: authorising the use of orphan works.

Bringing in a scheme that would allow the use of orphan works is probably one of the easiest and most cost-effective ways of modernising copyright in the UK. As the Hargreaves Report and the Consultation Document itself rightly emphasise, there are two key benefits from doing so.

The first is that orphan works in a fragile physical state – likely to be a substantial fraction, since orphan works tend to be those created some time ago – can be preserved in a digital form. If this problem is not addressed, then copyright becomes its opposite: not something that encourages the creation of new works, but that leads directly to the destruction of old ones.

The other immediate benefit from liberating the huge stores of creativity currently languishing in libraries and museums is economic: since orphan works cannot be exploited legally, it is unlikely that much benefit is being derived from them at all (illegal, possible accidental exploitation is likely to be rather low key.) Putting in place a system that allows orphan works to be used opens up a treasure store of materials.

Against that background, I include below answers to some of the specific questions posed in the Consultation Document.

4. What do you consider are the constraints on the UK authorising the use of UK orphan works outside the UK? How advantageous would it be for the UK to authorise the use of such works outside the UK?

Since one of the aims of the authorised use of orphaned works is to get them back in circulation, and to allow their owners to be discovered and, where appropriate, remunerated for their use, it makes sense to extend the scheme to include the use of orphan works outside the UK. This would have a number of advantages. It would help spread UK cultural items more widely, increase the likelihood that owners would be identified, and lead to more money being paid to the latter.

5. What do you consider are the constraints on the UK authorising the use of orphan works in the possession of an organisation/individual in the UK but appearing to originate from outside the UK:

a) for use in the UK only
b) for use outside the UK?
How advantageous would it be for the UK to authorise the use of such works in the UK and elsewhere?

The Canadian approach mentioned in the consultation document seems sensible here; that is, the test should be whether the persons or activities concerned have a ‘real and substantial connection' to the UK. An inclusive approach is advisable to avoid the likelihood of works "falling between the cracks".

6. If the UK scheme to authorise the use of orphan works does not include provision for circumstances when copyright status is unclear, what proportion of works in your sector (please specify) do you estimate would remain unusable? Would you prefer the UK scheme to cover these works? Please give reasons for your answer.

Again, anything other than an inclusive approach risks undermining the scheme. If the copyright status is unclear, a "diligent search" for owners of the kind under consideration might well resolveConsultation on proposals to change the UK's copyright system that uncertainty. If it doesn't, it makes sense to classify the work as an orphan.

7. If the UK's orphan works' scheme only included published/broadcast work what proportion of orphan works do you estimate would remain unusable? If the scheme was limited to published/broadcast works how would you define these terms?

Excluding unpublished works would be a huge missed opportunity, and runs counter to one of the main objectives of authorising orphan works: that is, liberating the holdings of libraries and museums. It makes no sense to attempt to apply copyright from some nominal modern date: the obvious moment of fixing is the first one.

8. What would be the pros and cons of limiting the term of copyright in unpublished and in anonymous and in pseudonymous literary, dramatic and musical works to the life of the author plus 70 years or to 70 years from the date of creation, rather than to 2039 at the earliest?

Adopting the far-off and arbitrary date of 2039 would be absurd and negate much of the advantage of the orphan work authorisation.

9. In your view, what would be the effects of limiting an orphan works' provision to non-commercial uses? How would this affect the Government's agenda for economic growth?

This issue of commercial vs. non-commercial use has been explored in great detail by both the free software and open content communities. The huge and growing success of the GNU/Linux operating system, which is made available under the GNU GPL licence that does permit commercial use, and the enormous business ecosystem that has grown up around it, is evidence for the success of the former approach. In order to allow the greatest benefit to be derived from orphan materials, and for business uses to thrive, I urge that commercial use of orphan works be explicitly permitted.

18. Do you favour an upfront payment system with an escrow account or a delayed payment system if and when a revenant copyright holder appears? Why?

By their very nature, orphan works have no identified owners. This means that we would expect relatively few revenant copyright holders to appear. This, in its turn, suggests that the default position should be deferred payment if and when those copyright holders appears. If the escrow system is employed, possibly large sums of money will be held, presumably forever. This additional upfront cost would discourage innovative users of existing orphan works – hardly what the scheme is designed to achieve.

19. What are your views about attribution in relation to use of orphan works?

As the Internet has shown us, reputation is a hugely important issue, so it is vital that orphan works, like all others, be linked with their authors.

21. What are your views about what a user of orphan works can do with that
work in terms of duration of the authorisation?

There is an issue here that is not mentioned explicitly in the consultation document: what happens when orphan works are digitised. There is an alarming tendency for those who carry out digitisation of public domain documents, for example, to claim copyright in that new image, or possibly some kind of database right. I think it should be a precondition of access to orphan works that no such digitisation or database rights will be claimed. If not, the danger is that the liberated orphan works will simply be locked up in a different way.

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