Beginnings, endings and orphans

The end of my #citylis journey is nearing. After almost two years I’ve finished all my taught modules, written 8 essays, sat through roughly 240 hours of lectures, attended all sorts of fun events after hours, such as library carpentry, the British Library roadshow, took a trip to a cemetery (because you know Library science?!) and met lots of great people. Of course it’s not really the end, after all #citylis is really for life not just for Christmas, just because you finish the course doesn’t mean you can’t still be involved in #citylis. #citylis is more of a community than a just a course. Also, there’ still the matter of the ‘dreaded’ dissertation to complete, 15-20,000 or so words worth of LIS researchy goodness.

For dissertation topic I ended up landing on a subject that was completely unrelated to my previous ideas. Having spent most of last year thinking of writing about the history of printing, and collecting quite a bit of material to that end, I tossed that idea on the basis that it’s an area that’s already been thoroughly explored. My second choice up until the end of last month was on the concept of libraries in the seventeenth century, I became interested in this after reading about La Bibliotheque Mazarin (see my last blog post).

Then whilst studying the Information Law and Policy module, with the very knowledgeable Paul Pedley I encountered the subject of orphan works.

Little lost Orphans

What are orphan works? I hear you ask. Well the UK Intellectual Property office defines orphan works as:

“creative works or performances that are subject to copyright – like a diary, photograph, film or piece of music – for which one or more of the right holders is either unknown or cannot be found.” (IPO 2016)

Orphan works have proved to be a proverbial spanner in the works for library digitization projects, libraries can’t obtain permission to make use of these works. Any organisation wanting to use these works risk infringing copyright and could face an expensive lawsuit from a reappearing rightsholder.

This is because Copyright grants rights-owners (which may not always be the creator) exclusive rights over the Reproduction, Distribution, Public Performance and Communication to the Public of their work(s).The Intellectual Property Office’s guidance: The rights granted by copyright (IPO 2015) states that Reproduction includes scanning, whilst Communication to the public  covers “communication of a work to the public by electronic transmission. This would include broadcasting a work or putting it on the internet.” Since digitization involves both scanning and making a work available online doing so without permission of the rightsholder would result in an infringement of their exclusive rights. As Padfield (2015) states a rightsholders rights are unconditional and can therefore take action against any infringing use, regardless of whether or not they intend to exploit the work themselves, and regardless of whether “the infringement has caused harm or brought any economic benefit to the infringer”

The scale of the problem is revealed in a report by the British Library, which estimated that around 43% of in-copyright material in its collections were orphans(Stratton 2011), whilst the Imperial War Museum holds 2 million photographs with no identified owner.² The high proportion of orphan works in the collections of cultural heritage institutions has had a major impact on digitization projects research conducted by the University of Glasgow reported that institutions spent an average of 2.58 hours searching for rightsholders in books at a cost of £31 per work. For newspaper and magazine clippings the time spent searching for rightsholders was 1.52 hours at a cost £23 per work. Similarly the British Library estimated that based on a representative sample of 140 books it would take a single researcher more than 1000 years to check the entire collection.(Stratton 2011)

The uncertainty around the use of orphan works has given rise to a phenomenon known as the “20th century black hole“, as libraries are unable or unwilling to digitize 20th century material. This phenomenon is illustrated by data from Europeana which found a dramatic fall in the availability of material from the second half of the 20th Century.

An orphan photo: DUNKIRK 1940 © IWM (MH 5848)

In an attempt to resolve the issues with orphan works the EU passed Directive 2012/28/EU which aimed to ‘set out common rules on the digitisation and online display of so-called orphan works‘. In the UK this was introduced into law through the Copyright and Rights in Performances (Certain Permitted Uses of Orphan Works) Regulations 2014.

The directive provides a Copyright exception to enable and allow cultural heritage institutions(CHIs) to digitize and make available online orphan works in their collections, following a search for rights holders, also know as a diligent search. The exception covers literary, cinematographic and audiovisual works as well as sound recordings, but does not permit the use of standalone artistic works such as photographs, maps and paintings. A key limitation is that the usage must be non-commercial, although institutions are able to make a charge to recover the costs. Furthermore, the exception requires any CHI that uses orphan works to register that work in the EU Orphan Works database, now managed by the European Union Intellectual Property Office (EUIPO). Once a work has been established as an orphan in one member state, it is recognized as an orphan across the whole of the EU.

Orphan Works License scheme

The limited nature of the exception led the UK the Government to introduce a licensing scheme for orphan works. The licensing scheme allows any individual or organisation to purchase a non exclusive license for either commercial or non-commercial usage of orphan works. The cost of license includes an administration fee and ranges from 10p upwards. All prospective licensees must conduct a diligent search for the rights owner as part of  the application process and are required to record the details of their search. Details Once a license is granted it lasts for 7 years and the details are recorded in the UK orphan works register. The register includes details of all applications including those that were unsuccessful or withdrawn, but doesn’t give details as to why they were rejected or withdrawn. The license fee is set aside for 8 years as fair compensation in the event of the rights-holder reappearing ,

A comparison of orphan works legislation 

	UK license scheme	EU Orphan Works Directive
Who is eligible to use it	Anyone	Cultural Heritage Institutions
What works does it apply to?	All Works	Text based works, embedded artistic works, and audio-visual works which have been published or made publicly available by a relevant body.
What uses are covered?	All uses	Making available and reproductions for the purposes of digitization, making available, indexing, cataloguing, preservation or restoration.
Diligent Search	Yes, using guidance and specific forms	Yes, self-certified
Fees	Minimum £20 application fee, plus 10p minimum license fee	None
Rights holder claims coverage	IPO the IPO will pay licence fees	User must pay license fee
Duration	Up to seven years	Until expiration of Copyright or rights holder appears
Coverage	Uk only	EU-wide

Source: Oconnell (2015)

Formulating a research question

Now that I have outlined what orphan works are and why they are a problem I need to talk a little more about what I am actually going research. My intention is to determine how effective is the current orphan works legislation in enabling institutions to use orphan works.

Since the intended aim of the exception was to enable CHIs to digitize and make orphan works in their collection available, I intend to determine whether the legislation has had the desired effect.

Already, I have found evidence that it hasn’t been successful as intended.

My initial research suggests it hasn’t, largely because the burden of the diligent search is to strict or the costs of carrying out searches are still too high. Some authors have argued that the reason for the orphan works problem lies in the length of Copyright which is currently set at 70 years after the death of the ‘author’. Of course with orphan works the problem is that the ‘author’ can’t be located or identified, it can be impossible to determine whether a work is still in Copyright.

Article 3(2) of EU directive states that:

The sources that are appropriate for each category of works or phonogram in question shall be determined by each Member State

The UK Intellectual Property Office provides detailed guidance for the different categories of works on its website, with separate guides covering Film & Sound, Literary Works, and Still Visual Art. Each guide lists the many different sources that CHIs and potential users of orphan works should check as part of the diligent search process.

For literary works alone there is a checklist of 36 sources that should be checked:

1. Orphan works’ registers
2. Legal deposits, library catalogues and authority files
3. Society of Authors
4. Writers’ Guild of Great Britain
5. Association of Authors Agents
6. Publishers Association
7. WATCH (Writers Artists and their Copyright Holders)
8. ISBN (International Standard Book Number)
9. Authors Licensing and Collecting Society
10. Publishers Licensing Society
11. Copyright Licensing Agency
12. Public Lending Right register
13. Virtual International Authority Files (VIAF)
14. Credits and other information appearing on the work
15. FOB (Firms Out of Business) database
16. Companies House
17. The provenance of a work (i.e. where the work was found)
18. General internet searching
19. Records of literary agents
20. International Standard Text Code (ISTC)
21. Copac
22. Author and book info database
23. Poetry Library
24. International Standard Name Identifier (ISNI) database
25. Books in Print database
26. Copyright Hub
27. Academic and scientific databases
28. Online databases and catalogues
29. Digitised newspaper archives
30. Genealogy websites
31. Wills – searching for family members or connections of the author
32. Archives
33. Treasury solicitors
34. Biographical directories
35. Author directories online
36. Other sources identified

Along with the aforementioned guidance the checklists provide detailed and extensive direction for those undertaking the search. Deazley (2017) references the fact that some believe that diligent search is in fact an exhaustive search, in that where a list of sources has been issued it becomes necessary for all those sources to be checked in order for a search to qualify as diligent. However, as he points out the IPO guidelines state that a search should be context specific depending upon the type of work.

One proposed solution to burden of diligent search is proposed by Borghi, Erickson & Favale (2016). After  discussing the issue of orphan works and examining the legislative responses, they examine the costs of rights clearance and diligent search that are borne by CHIs seeking to use orphan works. They propose the use of crowdsourcing platform to spread the cost and workload of a diligent search, stating that:

A legally compliant and rigorously designed crowdsourcing solution could reduce risks to cultural institutions and help overcome perceived challenges associated with mass digitization.

Such an initiative, they argue could also enable cultural heritage institutions with little or no experience in rights clearance, to conduct diligent searches of their own, thereby providing them with the potential means to identify and  use orphan works in their own collection.

Guided by platform users would be lead to three possible outcomes.

1. the work is in the public domain;
2.  the work is in-copyright but the rightholders cannot be located:
3.  the work is in-copyright and the rightholders are traceable.

As the authors state, for outcomes 1 and 2 it would be up to the institution to verify the status of the work. In the case of the third the platform will generate a report for the user and the host institution containing information about the rightsholder(s). It would then be up to the institution to contact the rightsholder or their representatives and negotiate a license for use.

Next Steps

Once I have finished my initial literature review, I intend to conduct a survey of libraries and archives on their attitudes towards the current orphan works legislation. I am interested in finding out whether it has impacted on their digitization projects (positively or negatively) and whether as the literature shows the burden of the diligent search is an issue in terms of time and resources. I will also examine the EnDOW (“Enhancing access to 20th Century cultural heritage through Distributed Orphan Works clearance”) project, which builds upon the research about crowdsourcing diligent search. Specifically it states that it

“aims at designing, implementing and testing an efficient and cost-effective system for determining the “orphan work” status of library, archive and museum material, according to the requirements of the recently implemented European Directive on orphan works.” (Diligentsearch.eu., no date)

I will also look at a recent project called Digitising the Edwin Morgan Scrapbooks, which examined the current orphan works legislation, through a “rights clearance simulation on a culturally significant set of unpublished scrapbooks created by Edwin Morgan, the first Scots Makar.” The project which can be found at http://www.digitisingmorgan.org/ concluded that “mass digitisation and diligent search are fundamentally incompatible”, so I will be examining the reasons for that conclusion. Then on 23 June this year Bournemouth University is hosting an International Symposium:  New Approaches to the Orphan Works Problem: Technology, Regulation, Practices. This is a free event which will:

“bring together the findings of EnDOW researchers and those of fellow scholars around the world, in order to explore innovative approaches to the problem of orphan works. Technology, legal regulation and best practices will be thoroughly discussed and tested by the participants.”

I’ve booked a place and hope to learn plenty about the EnDOW project and current thinking on Orphan Works legislation. I hope be able to speak to some of the presenters and get their opinion on the initial findings of my research. This will help inform the next stages of my research.

I hope to post periodic progress reports here, so watch this space.

-Fin –

References

Deazley, R. (2017) Digitising the Edwin Morgan Scrapbooks: Conclusion

Deazley, R.  Patterson, K, .&  Stobo, V.(2017), Digitising the Edwin Morgan Scrapbooks http://www.digitisingmorgan.org

Diligentsearch.eu. (2017). About – diligent search. [online] Available at: http://diligentsearch.eu/about/ [Accessed 5 Jun. 2017].IPO (2016).

Copyright: orphan works – GOV.UK.

M.J (2013) Orphan works No longer in limbo – The Economist Babbage blog http://www.economist.com/blogs/babbage/2013/05/orphan-works

O ’connell, A. (2015) Copyright in Unpublished Works: 2039 and Orphan Works. Library and Information Research, 39(121).

Padfield, T. (2015) Copyright for archivists and records managers, Fifth edn, Facet Publishing, London.

Patry, W.F.  (2011)How to fix copyright, Oxford University Press, Oxford;New York. via Oxford Scholarship Online DOI: 10.1093/acprof:osobl/9780199760091.001.0001

Rosati, E. (2013)  The Orphan Works Provisions of the ERR Act: Are They Compatible with UK and EU Laws?  European Intellectual Property Review, (Forthcoming.) Available at SSRN: https://ssrn.com/abstract=2323393

Schroff, S., Favale, M. & Bertoni, A.  (2017) The Impossible Quest – Problems with Diligent Search for Orphan Works . doi:10.1007/s40319-017-0568-z

Stratton, B (2011) Seeking New Landscapes: A rights clearance study in the context of mass digitisation of 140 books published between 1870 and 2010. The British Library Board

Literature

Arnold, R. (2015). The need for a new Copyright Act: a case study in law reform: The Herchel Smith Intellectual Property Lecture 2014. Queen Mary Journal of Intellectual Property, 4, 5(2), pp. 110-131.

Baker, K. E. (2016). It’S a Hard Knock Life: a Critique of the Legislative Response To the Orphan Works Problem in the Uk. s.l.:s.n.

Christo, C. (2015). Mass Digitization and Copyright. information today, 32(10), pp. 1,28-9.

Collections Trust, (2009). In from the Cold, Collections Trust

Cornish, G. P. (2015). Reform of UK copyright law and its benefits for libraries Reform of UK copyright law and its benefits for libraries. Interlending & Document Supply, 43(10), pp. 14-17.

Linklater, E (2015). Make me an offer I won’t regret: Offers to license works on acceptable terms cannot block libraries’ “right” to digitize for access on dedicated terminals: Technische Universität Darmstadt. Common Market Law Review, 52(3).

Favale, M., Schroff, S. & Bertoni, A., (2015). The Impossible Quest: Problems with Diligent Search for Orphan Works Marcella Favale, Simone Schroff, Aura Bertoni *. SSRN, Volume July.

Gangjee, D., S. (2016) Copyright Formalities: A Return to Registration?. In R Giblin and K Weatherall (eds), What if We Could Reimagine Copyright? (ANU Press, 2017) 213.. Available at SSRN: https://ssrn.com/abstract=2923897

Hansen, D. R.,(2014). Copyright Reform Principles for Libraries, Archives, and Other Memory Institutions. Berkeley Technology Law Journal, Volume 29, pp. 1559-1594.

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Intellectual Property Office, (2014) Government response to the technical consultation on orphan works.

Kevin L. Smith, J. & Powell, H. J., (2009). Copyright Renewal for Libraries: Seven Steps Toward a User-Friendly Law. portal: Libraries and the Academy, 10(1), pp. 5-27.

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Patry, W., 2012. The Length of Copyright Is Damaging Our Cultural Heritage. In: How to Fix Copyright. Oxford: OXFORD UNIVERSITY PRESS.

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Senftleben, M., (2014). Comparative Approaches to Fair Use: An Important Impulse for Reforms in EU Copyright Law. In: G. B. Dinwoodie, ed. ‘Methods and Perspectives in Intellectual Property’. Cheltenham: Edward Elgar, p. 25.

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Stobo, V., (2016). Copyright exceptions for archivists and librarians in the UK. Art Libraries Journal, 41(01), p. 3–10.

Van Gompel, S., (2010). Formalities in the digital era: An obstacle or an opportunity?. SSRN, pp. 395-424.

Van Gompel, S. & Hugenholtz, P. B., (2010). The Orphan Works Problem: The Copyright Conundrum of Digitizing Large-Scale Audiovisual Archives, and How to Solve It. Popular Communication, 4 2, 8(1), pp. 61-71.