It should be remembered that the US is not the only one looking at this issue – whilst they have hot lined one of their bills (the worst one from the Senate!) through to the next stage, creators organisations are now lobbying to ensure the better House version is not folded. The EU are also investigating how this issue should be handled and have produced a Green Paper which, amongst other issues, asks for opinion.

A 2nd meeting has been held in the UK to discuss possible legislation here nd the report can be read here:

Orphan Works – UK: Latest News

Background

• In 2006 the Gower’s review called on the UK Government to legislate for orphan works, giving free use for all works which were still in copyright but couldn’t either a) be attributed to the author or b) the author couldn’t be found. This was to cover all creative works.
• UK Gov/UKIPO stood back and watched what was to happen in Europe
• EU Commission have an initiative called i2010 to enable EU cultural institutions to place their works in a huge digital library to give access for all to the arts and historical documents (including images).
• In 2007 EU pulled together High Level Interest Groups to agree sector specific due diligence guidelines, to be followed before a work could be classed as Orphan. User groups (Libraries/Museums etc) and Creator Groups (GT attended for Pyramide) met on a number of occasions in London and Brussels and agreed guidelines for cultural institutions to follow. It was agreed that no commercial use could be made from any “orphan” unless a fee was paid and no “mass digitisation” could be allowed – each work within a collection must have the same due diligence applied to it. Collecting Societies in the various countries would pull together collective schemes to cover commercial use by the institutions, if needed.
• The guidelines were finished and signed by all countries in April 2008. DACS began discussions with the UK Museums and Libraries group and formulated a draft collective licence.
• UKIPO called a meeting in May 2008 of interested parties at which the agreed due diligence guidelines from the EU were presented. DACS and the Museums Group announced they were discussing a collective licence scheme.

Latest position –UK

A second meeting of stakeholder interests, both creators and users, was called by UKIPO on 30/9/08 to look at how this issue should be handled by the UK Government. A paper was produced prior to the meeting and provided a legal analysis of the current UK situation and suggested possible ways forward.

The meeting was chaired by Ed Quilty, the Director of Copyright and IP Enforcement.

It should be noted that in the paper it was stated that “there is a particular demand that photographs be included although their inclusion does raise a number of practical issues”. We know this has arisen as many of the institutions have “shoe boxes of photographs” – these are generally amateur images (weddings etc) but are of historical value and are untraceable back to the creator. However, it is reassuring that UKIPO have listened, heard and noted my many pleas (both written and verbal) that photography cannot be lumped in with other “orphans”

The paper also stated:

• That a non-legislative scheme was not an option – collective licensing schemes would contravene the CDPA1988 (this was argued against by the collecting societies and publishers, given the photocopy licensing scheme and music licences in operation)
• There could be an exception to copyright provisions, amending the CDPA88. This may be a problem under the Information Society Directive (all UK legislation has to comply with EU Directives) which would need revising to include commercial use of Orphan Works. (I stated that if they dismissed the idea of any commercial use by all and sundry, then the problems with creators and legislation would be eased considerably – Ed decided that his use of the word “commercial” maybe wasn’t right)
• A new scheme based on bona vacantia (this is where abandoned/ownerless property can be distributed by the Crown) could be legislated for – UK Govt would need the OK from the Commission for this. (the publishers said they would support this option)
• The Berne convention (which the UK is a party to) cannot be contravened – however, it allows for countries to permit reproduction of works in special cases “which does not conflict with the exploitation of the work by the rights holder”. If the work is an orphan it will presumably not be being exploited by the rights owner. (I argued this was not the case with images as images can be lifted and distributed losing the trail back to the photographer who could still be using the original)
• The US route could be followed – thankfully, the paper stated this can’t be an option as it’s only a scheme to limit liability and copying an orphan work will still be an infringing copy (this is an interesting interpretation, similar to why they say the collective licensing scheme is not an option!)

I also stated that should the UK moral rights issues not be resolved (right to a credit currently has to be asserted and is waivable) then, whatever route was decided on, the UK would turn out more Orphan Works than any other EU country. Surprisingly some of the user interests, who I have normally clashed swords with, agreed with me. This was noted (again) by Ed and his legal advisor – UKIPO in the past (and recently) have repeatedly said they aren’t planning to do anything about this problem, but hopefully I’ve said it enough times now for it to have sunk in that it is a big problem.

Conclusions of the meeting:

UKIPO do not want to have to go down the primary legislation route – it is hard to find a slot in the Gov timetable; long winded and time consuming! However, they may not have a choice – any exceptions/changes to the CDPA need primary legislation.

UKIPO will look at the words commercial and un-commercial – what they meant really was ‘making available’ (this would allow cultural institutions to put works on their website) and ‘preservation’.

The Commission will be approached for their comments on the viability of bona vacancia; a copyright exception and special cases under Berne.

Watch this space – this is an important, and threatens to be a painful, issue. As we have been ‘picked out’ for special treatment we will need to get our act together.


Gwen Thomas

October 2008