Home > Copyright, Law > Digital Britain Report and Orphan Works

Digital Britain Report and Orphan Works


On 16 June the Government published The Digital Britain Report, its strategic vision for ensuring that the UK is at the leading edge of the global digital economy. This report received a lot of coverage in the press because it:

  • included proposals to throttle the internet speed of those caught illegally file sharing and allow Ofcom to force ISPs to collect data about those sharing files.
  • recommended that every household have access to a connection of 2Mbps or more by 2012.
  • proposed that households and businesses will have to pay a £6-a-year tax per landline telephone to extend internet access across the country.

I want to talk about something else: the report also contained proposals about the use of orphan works.

Orphan Works

So what are orphan works? An orphan work is a work that is in copyright and where, even after an extensive search, the copyright owner cannot be identified or found.

Orphan works form a large part of our culture and heritage that is virtually inaccessible. These works include books, photographs, movies and television programmes.

These works cannot be used without risk of civil and even criminal prosecution. They cannot even legally be digitized so that they can be searched. The quantity of orphan works is vast: the British Library estimates that 40% of its archive consists of orphan works and the BBC estimates that about one million hours of orphaned programmes are contained in its archives. All this material is effectively lost to humanity. The consequence for film is much more dire: old film deteriorates and will be lost forever unless it is preserved and restored. But no one is going to pay to restore film that cannot be shown.

The problems surrounding orphan works include:

  1. Some works are physically deteriorating and may be lost entirely before they can be preserved or restored
  2. Some works are effectively inaccessible to the public. They are only available to those who can access copyright libraries.
  3. Some works are effectively inaccessible to anyone. They are not indexed, searchable or discoverable so their content cannot be found even by a dedicated searcher such as a historian, filmmaker or publisher with a keen interest in their content.
  4. Orphan works do not generate income for their copyright holders
  5. Orphan works cannot be republished, even by someone willing to pay the copyright holder, since the copyright holder cannot be found

You may recall the Mitchell & Kenyon Collection of films that was screened on the BBC a few years ago.  The films were rediscovered in the 1990s, after languishing for many decades in the basement of a shop in Blackburn. The films were expensively restored by the BFI (British Film Institute). These films give a fascinating view of Edwardian England and form the largest collection of early non-fiction films in the world. These films date from about 1900 and are out of copyright – this means they can be restored, copied and shown to the public.

Suppose someone found a collection of old films about the Second World War, or the Korean War, or perhaps showing some interesting aspect of our industrial heritage in the 1950s. Could the BFI legally restore and distribute them? Could the BBC show them as part of an educational or cultural programme? The answer is no, not without obtaining permission from the copyright owner(s). But how can the copyright owner(s) be found?

Suppose you found an old photo of your parents’ wedding, taken by a professional photographer. Could you have it professionally retouched? The answer is no, not without obtaining permission from the copyright owner.

When a copyright owner cannot be found projects which might benefit our national heritage are abandoned. Scholars cannot make use of letters, images, books and manuscripts. Publishers cannot republish old works that have been forgotten. Museums are frustrated in the creation of exhibitions, books and websites. Archives cannot make rare footage available to wider audiences. Documentary filmmakers must exclude important source material from their films.

Digital Britain Report and Orphan Works

To its credit the Digital Britain Report looks at the problems associated with orphan works.

The Executive Summary, paragraph 47 states:

we will also make some changes to the legislative framework around copyright licensing, to tackle problems such as those surrounding the use of so-called orphan works and thus help digital markets in those works to develop.

paragraphs 43 and onward in Chapter 4, Creative Industries in the Digital World state:

43. …In order to pave the way for a more effective framework to deal with orphan works, the Government proposes to introduce legislation to enable commercial schemes for dealing with orphan works to be set up on a regulated basis.

…However, the expectation is that anybody wishing to use orphan works will be expected to secure an appropriate permission from the Government first…

Where the Digital Britain Report falls down

The report fails to understand a fundamental point: there is the public interest case for making orphan works more easily accessible and there is the copyright holder’s interest in being reunited with their works, and those two interests are rarely in conflict.

We are currently in the lose-lose situation where works are inaccessible to the public, and where copyright holders are not getting credit or payment for their works. We need to find solutions that work in the public and copyright holders’ interests. Works need to be un-orphaned.

There are two main solutions being proposed, I’ll call these ask permission and ask forgiveness.

Ask permission

This is the approach currently favoured by Britain and the EU. It means anyone proposing to use an orphaned work must as a Government approved body for permission to use the work (after doing a due diligence search for the author).

The trouble with this approach is that it simply does not address the problem. It doesn’t help identify copyright owners. It doesn’t allow mass digitization for indexing purposes. It prejudices the legitimate rights of the copyright holder. It doesn’t address the fact that there are vast quantities of orphaned works.

The latter point is particularly damning. This approach has been adopted in Canada. Since 1990 the Copyright Board of Canada has granted permission for the use of 237 works, these include “the reproduction of Châtelaine magazine covers in a promotional calendar”, “the reproduction of two nursery rhymes in an educational textbook” and “the reproduction of six images of aliens (source unknown)”. This is hardly unlocking the lost works of Canadian culture. (See  http://www.cb-cda.gc.ca/unlocatable-introuvables/licences-e.html )

Ask forgiveness

This is the approach being pursued in the US. There, provided a user makes a documented, good faith, diligent but unsuccessful search for the copyright holder, the user is free to use the work. (Of course the terms ‘diligent’ etc need to be defined, but that is a matter of legal detail.) The user is indemnified against prosecution. If the copyright holder resurfaces then they are entitled to a reasonable compensation for use of their work (again the precise legal meaning of  ‘reasonable compensation’ needs to be defined – the US report goes into this in some detail).

Everyone wins. Our cultural heritage is unlocked, and copyright holders can get compensation for their works.

We need a digital archive of our culture that is available to historians, researchers and people who are simply curious. We need a means of republishing orphan works. We need to unlock our lost culture. Let’s not enact legislation that prevents all that.

References

Gowers Review of Intellectual Property

Taking Forward the Gowers Review of Intellectual Property

EU Digital Libraries High Level Expert Group – Copyright Subgroup’s Final Report on Digital Preservation, Orphan Works, and Out-of-Print Works

Statement of Marybeth Peters, US Register of Copyrights

United States Copyright Report on Orphan Works

Copyright Policy: Orphan Works Reform, Lawrence Lessig’s proposal

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  1. Nick Webb
    Sep 9, 2009 at 09:41

    Fantastic blog post Martin. It’s frightening to find something this important that I knew nothing about. What can you or I do now to influence the UK policy to ‘forgiveness’ rather than ‘permission’? After awareness what next?

  2. Martin Budden
    Sep 9, 2009 at 10:22

    What can we do? Well, the Government has said it will consult before enacting Orphan Works legislation. I intend to respond to that consultation – you can too. You can also write to Lord Carter of Barnes, author of the Digital Britain report. You can also, of course, write to your MP and your MEP.

    But I think awareness is a big issue – tell your friends. Lots of people get outraged about DRM, but I’ve come to the conclusion that the problems surrounding copyright are much more serious than the problems surrounding DRM. But people aren’t aware of these problems and so don’t really get worked up about them: http://xkcd.com/14/

  3. Dec 29, 2009 at 21:06

    I am at least partly persuaded that there is a significant problem, especially having tried to piece together some of the patchwork of provisions in the legislation that I thought might help. There’s quite a lot in the legislation already to help with the problem. Probably not enough, but it certainly deals with some situations.

    Section 12(3) of the Copyright, Designs and Patents Act provides that if the author of a work is unknown, copyright expires 70 years after the work was made or published. Sections 57 and 66A allow one to assume that copyright has expired if the author cannot be identified but it is reasonable to assume that copyright has expired, so that deals with old stuff, and in th case of the films you mention if they are more than 50 years old copyright will have expired. In fact there was no copyright in films before 1957 at all (just in the photographs and the dramatic work, if any – though the copyright in the photos might be a problem).

    Copyright law does not hinder scholarship, because not knowing who the author is does not mean that you cannot consult the work in a library: only if you wish to make copies is this a problem, but that might be permissible under other provisions (fair dealing for private study or non-commercial research, library exemption (sections 38 and 39)). Libraries can make copies for archival and preservation purposes, though this does not extend to films – perhaps that’s one area where the law does need to be changed. Museums don’t need consent from copyright owners to put most types of copyright works on show.

    I think there’s another point here, which is that the provisions that already deal with orphan works might have been OK in 1988 (less so after 95, when the term of protection increased) but are hopelessly out of touch with the capabilities of modern technology now. The history of copyright is one of adaptation to technological change, and maybe that’s what this is – certainly, it’s a better way for me to look at it. Thanks for educating me!

    • Martin Budden
      Dec 30, 2009 at 11:46

      Peter, thank you for your thoughtful and considered reply. I’m glad I have been able to at least partially convince you of the importance of the problem. To answer some of the points made in your reply:

      You say: “Sections 57 and 66A allow one to assume that copyright has expired if the author cannot be identified but it is reasonable to assume that copyright has expired, so that deals with old stuff”. The trouble is that this only very partially “deals with old stuff”. Often the author can be identified, but not found, so it cannot be assumed that the copyright has expired.

      Scholarship is indeed hindered. As you point out professional scholars can consult the work in a library. But more obscure works are only available in copyright libraries, so even professional scholarship is hindered by the need to travel to such a library. Many non-professional scholars don’t have access to copyright libraries and so their work is hindered. But these hindrances are dwarfed by something alluded to in your last paragraph – the fact that orphan works cannot be digitised without infringing copyright. Without digitisation orphan works are less accessible, they are not searchable and they are not indexable. The full force of modern technology cannot be used and scholarship is significantly hindered.

      As you point out the history of copyright is one of adaption to technological change. We have just been through a period of rapid technological change and the law needs to catch up. And as I have said elsewhere, I actually think the law is generally pretty good at adapting itself to the advent of new technology. Often, though, it has to be forced by the commercialisation of that technology. Whatever you think of the Google Book Scanning Program, it is certainly forcing lawyers and politicians to look at this area of the law.

  1. May 13, 2011 at 01:55

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