In my last last post I wrote a brief introduction to my #citylis dissertation, a study of the effectiveness of current orphan works legislation. To recap orphan works are Copyrighted material for which the copyright holder is unknown or unable to be located. The collections of cultural heritage institutions such libraries and archives hold a significant amount of such material. As they are unable to contact the rights holder to gain permission for using this material, institutions have chosen to not digitize these works. This has led to what is known as the 20th century black hole
My dissertation seeks to determine how effective the legislative solutions to orphan works have been in enabling cultural heritage institutions to digitize and make available online the parts of their collections that contain orphan works.
1) Why is it important?
Without, an effective solution much of our global cultural heritage will remain hidden and inaccessible to anyone unable to visit the institutions containing so many of these valuable works. A Collections Trust report(2009) claimed that:
The huge scale and significant impact of Orphan Works, conservatively estimated to be some 25 million items across public sector organisations, has led to a ‘locking up’ of content with little or no prospect of these items ever making a meaningful contribution to a knowledge economy without potentially complex and costly ‘due diligence’ processes.
Baker(2016) claims that the inability to clear the copyright of works whose authors could not be located, has hindered various mass digitization projects including Europeana and Google Books. This is echoed by Van Gompel and Hugenholtz (2010) who state that:
By impeding the clearance of copyright and related rights, the orphan works problem may frustrate entire reutilization projects and prevent culturally- or scientifically-valuable content being used as building blocks for new works
David R Hansen(2017) believes that it is a problem that is worth solving claiming that:
As long as it remains unsolved, a significant fraction of our culture will be hidden or suppressed. The problem is not that we can’t put our hands on the works themselves. Most are sitting on library shelves, just as, conversely, most works sitting on library shelves may be orphans. The problem is that we are not legally allowed to make them more accessible and usable, even when the rightsholders would welcome us to do so.
2) We don’t really know how big a problem it is, but it’s big:
In a 2010 study on orphan works and the costs of rights clearance Vuopala argues that:
The first and fundamental challenge when dealing with the issue of orphan works is to quantify the extent of the problem, i.e. to establish reliable figures on the amount of orphan works within collections of cultural institutions in Europe.
Various studies give estimates about the proportion of orphan works in the collections of cultural heritage institutions. A 2011 rights clearance exercise for the British Library found that 43% of a sample of 140 books published between 1874 and 2010, were orphan works. Meanwhile, a 2009 Collections Trust study meanwhile reported that ‘the average proportion of orphan Works in a collection overall was measured at 5% to 10%’, whilst certain sectors, such as libraries and archives likely to have much higher. Based upon estimates they calculated that the UK museums sector was likely to include holdings of over 25 million orphan works. Furthermore, 26 of the 503 respondents to the survey reported that their collections contained over 1 million orphan works.
When these vast collections are taken into account, analysis to calculate the volume of Orphan Works represented in this survey alone starts to become mind-boggling. Individual estimates suggest that there are single organisations in the survey sample that hold in excess of 7.5 million Orphan Works. (Jisc 2009)
Overall they estimated that 503 UK institutions could hold in excess of 50 million orphan works. Vuopala (2010) argues that:
It is hard to establish reliable figures on the amount of orphan works, because at the moment there is no easy way to establish that a work is orphan. Hence, very little systematic research has been done and hardly any empirical data has been available about problems related to orphan works.
3)Why do works become Orphaned?
There are several reasons why works become orphaned including:
- The work has insufficient information to identify the creator copyright holder.
- The original copyright holder can no longer be located at the original address and there are no records of a new address
- Copyright has been assigned to a new owner
- The copyright holder has died or the business has ceased to exist
- The copyright owner does not realize that they benefit from copyright
- Length of duration of copyright in unpublished text based works in the UK
A major reason why there are so many orphan works is that there is no register of copyrights requiring creators to register their works. This is because copyright is automatic the Berne Convention states that there should be no formalities to the granting of copyright. Article 5(2) of the Berne Convention states that:
The enjoyment and the exercise of these rights shall not be subject to any formality ; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work.
Greenburg (2012) claims the rise in the number of orphan works has resulted from the:
shift away from formalities coupled with the explosion of instant authorship and the expansion in scope and duration of copyright,
As Baker(2017) notes the orphan works problem has led to calls for a system of copyright registration to be reintroduced (until the 1923 Copyrighted works had to be registered with the Stationers Company) however such a suggestion would be impractical in the current age of digital and social media. Any return to a system of copyright registration would create a situation whereby creators such as bloggers, photographers would need to apply for copyright protection for their posts on a daily basis. As Greenburg (2012) argues any return to registration would lead to a situation, whereby due to the costs involved in a formal registration with the Copyright office, a creator such as a blogger would be unable to determine at the point of creation which if their works were likely to be commercially successful or not. Consequently, he argues they would likely not to register any works.
Furthermore, in order to be of value to potential users of orphan works, any such register would need to be updated to record any transfer of intellectual property rights. A voluntary system of registration exists in the United States whereby creators can submit their work for registration with the Copyright office, however, this is optional and does not grant them any additional rights. It does, however, provide a public record of the copyright claim, and is necessary prior to any infringement claims (U.S. Copyright Office 2012).
EDIT someone pointed out to me that under US copyright law, a rights holder can only sue and collect damages for infringement if one they have registered a property for copyright, the right to sue (for damages) is important, especially as a deterrent to use of the work without permission or licensing.
One of the recommendations of the 2009 report on Orphan Works, ‘In from the Cold An assessment of the scope of ‘Orphan Works’ and its impact on the delivery of services to the public’ (Jisc) was the creation of an ‘official national database’ such a database they suggested should be:
…on an ‘opt-in’ basis, so that copyright holders would be responsible for making sure that they put their works into the database if they want to benefit and that, otherwise, organisations could use works as they see fit.
The Gowers’ Review of Intellectual Property (2006) made a similar recommendation for the establishment of a voluntary register of Copyright, possibly in partnership with existing rights holder databases. However, there is a difference between a voluntary register and a formal register that would require rights holders to opt out if they didn’t wish their work to be used. Such a system would likely be in breach of the Berne convention as it would represent a formality.
N.B. it could be it’s referring to a form of Extended Collective Licensing, but it’s not clear.
4) The length of Copyright is damaging our cultural heritage
As William Patry (2012) argues in How to Fix Copyright one of the main causes of orphan works is the length of Copyright term, as he says:
If you can’t track down who owns rights in the work, you can’t use it no matter how socially beneficial your use may be and no matter how likely it is that the copyright owner has lost all interest in exploiting the work. This was not a problem when
the term of protection was short: those who argued for a longer term of protection selfishly thought only of themselves, not thinking or caring that the longer the term of protection, the greater the loss to society from the inability to create new works based on old works, and an inability to preserve old works. The long term of protection is seriously damaging to our cultural heritage.
When the first act of Copyright, the Statute of Anne was enacted in 1709, it granted authors a protection of 14 years, 21 years for books already in print. At the end of the 14 years if the author was still alive then the copyright was renewed for another 14 years. Over time authors and authors rights societies have sought to lengthen the term of protection afforded by Copyright.
Today the length of Copyright today stands at life +70 (70 years after the death of the author/creator) this means the copyright in most works published today and within the last century won’t expire and enter the public domain for a considerable length of time. This means that for CHIs to digitise them, they will need to track down the creator or current copyright holder. The further away from the date of creation the greater the chance that the work will become orphaned.
Patry (2012) proceeds to claim that there is no orphan works problem, rather a problem with the length of Copyright term, arguing that the longer copyright term makes it harder to use works:
Short of contacting each author about each work, there is no longer a way to determine which works the author desires to protect and which works he, she, or it (in the case of companies) doesn’t wish to protect: All works must be treated as under protection, requiring permission before use.
COMMUNIA, an international association advocating for policies that expand the public domain and increase access to and reuse of culture and knowledge, have called for a reduction in the length of term of Copyright.
They argue the excessively long duration of copyright protection in combination with a lack of formalities has a detrimental effect on the accessibility of our shared, stating that:
There is no evidence that copyright protection that extends decades beyond the life of the author encourages the production of copyright protected works. Instead the requirement to obtain permission for works by authors that have long died are one of the biggest obstacles for providing universal access to our shared culture and knowledge.
5)It’s all about risk
Perception of risk and tolerance or intolerance to risk is an important factor in the selection of material for digitisation. The greater the tolerance of risk the more materials that are likely to be included in digitisation. The risk may be as much do with concern for reputational damage, as the concerns regarding financial penalties arising from infringement. Well known and prestigious CHIs may be less willing to risk their reputation in digitising material without permission from rights holders. Favale, Schroff, and Bertoni (2017) point to differing approaches to risk amongst institutions dealing with orphan works, stating that:
Most risk-averse institutions do not digitize or do not publish orphan works whereas others take the risk to use the works without clearance. Others try their best to locate the rightholders of these works, to a different extent.
In his report looking into legal strategies for digitising orphan works in the United States Hansen(2017) notes that risk and uncertainty are two of the main reasons why so few of the estimated millions of orphan works in libraries and archives are made available online, saying that:
Librarians, archivists, and others want to digitize orphan works and make them available for free online, but often don’t because of risks associated with legal action and, specifically, copyright infringement actions. If the rightsholder of a work that the digitizer thought was orphaned were to later come forward with a copyright infringement claim, the result could be devastating.
Reputational damage, arising from an act of infringement could impact on the ability to secure participation from rights holders for future digitization projects, as Deazley & Stobo (2013) noted when discussing the Codebreakers digitisation project at the Wellcome library:
Damaging your reputation as a trusted and reliable repository is indeed a serious risk, if you consider that the reputation of the Wellcome Trust and by extension the Library, was important in securing the participation of rights holders in Codebreakers in the first place.
Where risk/ Copyright is a factor that leads to the exclusion of material from digitisation projects, this creates the possibility of a skewed public digital record. In an age where the primary access to the public record and cultural heritage is online, the exclusion of a category or categories of material could lead to a distortion towards material that requires little or no rights clearance.
As Stobo et al (2017) noted this has several impacts: first, because digital is now the primary means of access for CHI users they may be unaware of what is missing from said digitised collections. Second, research using online materials is skewed on the basis of what is available, this is especially significant for disciplines such as the Digital Humanities that rely on large data-sets for their research. Lastly, if material is not accessible due to copyright, this has implications for access and preservation since preservation may only be prompted when there is a request to use the material. In other words preservation may also be hindered by the inability to facilitate rights clearance for online access.
Rosati (2013) notes the impact of Copyright :
there have been significant instances in which the copyright status of the various works that could be potentially included in digitization projects, along with difficulties arisen in clearing the relevant rights, have either impeded or significantly altered the scope of digitization projects.
7) Part of a larger problem
The orphan works issue can be seen as a symptom or manifestation of the larger issue of how Cultural Heritage Institutions go about clearing rights for digitization projects. Orphan works may comprise only a small percentage of a collection that is being digitized, or it may not be apparent before the start of a project whether works are orphaned or not. Ringnalda (2011) says this in claiming that orphan works issue is:
not the main hurdle on the way to a successful Europeana. Instead, the orphan works problem is only a symptom of a much larger issue: the inability to clear copyrights for the mass digitization and online dissemination of entire library collections.
Meanwhile, Vuopala (2010) notes the cost of clearing rights can amount to far more than the cost of digitizing the material, especially for smaller institutions. while, the cost of digitizing is reduced as projects are scaled up, the more items digitized the cheaper the cost per item, the cost of clearing. Furthermore, the process of rights clearance for large scale digitization projects can be extremely time consuming and laborious, as Ringnalda (2011)argues:
Licensing on an individual scale seems to be too much to ask for. If we have to wait until the copyright owners for all the works in library collections have been found or looked for, we will not see a digital library in the near future, with or without orphan works. Waiting for all those works to pass into the public domain would be more efficient, and probably quicker, too.
While it may be more efficient and quicker to wait for works to pass back into the public domain this does nothing to resolve the issue of the 20th Century Black hole. The question facing legislators has been how to resolve the issue.
8) The i2010 Digital Library initiative and the need for a legislative solution
in 2005 the European Commission’s Information Society and Media Directorate published its i2010 digital Libraries initiative, stating the intention of creating a single European digital library providing online access to European cultural heritage. Launched in 2008 Europeana acts as an aggregator for Europe’s digitised cultural heritage and offers direct access to digitised books, audio and film material, photos, paintings, maps, manuscripts, newspapers and archival documents that are part of Europe’s cultural heritage.
The EU has been considering the issue of orphan works since 2006 when it established a High Level Expert Group(HLEG) on Digital Libraries. An interim report “Report on Digital Preservation, Orphan Works and Out-of-Print Works” adopted by the group in 2007 stated that a solution to orphan works was desirable for at least literary and audio-visual works. It proposed that non-legislative solutions to orphan works should include the creation of dedicated databases concerning information on orphan works, improvements to rights holder metadata in digital material, and enhancements to contractual practices, particularly for audiovisual works. The Subgroup also recommended that Member states give appropriate support to contractual arrangements that take into account the role of cultural institutions.
In the UK the Gower’s Review of Intellectual Property (2006) considered the problem of orphan works and made various recommendations on how to resolve the issue, including proposing an ‘orphan works’ provision to the European Commission that would enable creative artists to reuse orphaned material. Anticipating future legislation to resolve the situation, it also recommended that clear guidance be issued by the Patent Office regarding
the parameters of a ‘reasonable search’ for orphan works, in consultation with rights holders, collecting societies, rights owners and archives,when an orphan works exception comes into being.
Lamentably, many of the recommendations made by the Gower’s Review had failed to be implemented by the time of Sir Hargreaves Review of Intellectual Property and Growth (2011) which noted that only 25 of the 54 recommendations made by Gower’s had been implemented. Hargreaves seems to imply that the reason for this was down to the effectiveness of groups acting on behalf of rights holders whose lobbying ‘”has been more persuasive to Ministers than economic impact assessments.”
Hargreaves’ report would also attempt to tackle the issue of orphan works himself suggesting that the creation of a Digital Copyright Exchange, which would facilitate the sale of licenses by rights owners, claiming that automation would speed up and reduce the cost in the process. The will result in:
…a UK market in digital copyright which is better informed and more readily capable of resolving disputes without costly litigation.
The need for a legislative solution to the issue of orphan works is illustrated by Ringnalda(2011) who argues that given that infringement is a criminal offence in many European countries, allowing users to simply start using the works after an unsuccessful attempt to locate the rights holder would not be appropriate. He says:
Inducing public libraries to wilfully violate criminal law by having them use orphaned works without permission would therefore clearly violate public order and policy. Self-regulation cannot suffice. A legal solution is required.
While the i2010 strategy and the Europeana platform that it gave birth form the background to the adoption of the Orphan Works Directive in 2012, Janssens & Tryggvadóttir(2016) note that particular attention to preservation and making available of European cultural heritage, was also driven by Google’s book project, arguing that this was the spur behind the European Digital Library initiative. Rosati (2013) agrees that Google Books settlement encouraged the development of orphan works legislation and wider reforms relating to digitisation of works, citing a 2009 speech by, then Commissioner for Telecoms and Media Digital Europe, Viviane Reding, in which it was claimed that:
lacking a reform of EU rules on orphan works, digitization of works and the development of attractive content offers (including the Google Book Library Project) would not have taken place in Europe.
An 2008 report of the Copyright Subgroup of the HLEG identified four conditions that should be met by potential users of orphan works:
- A user wishes to make good faith use of a work with an unclear copyright status;
- Due diligence has been performed in trying to identify the rightholders and/or locate them;
- The user wishes to use the work in a clearly defined manner;
- The user has a duty to seek authority before exploiting the orphan work…
By 2011, when the EU began to consider again the development of a legislative solution to enable the use of orphan works, they considered various options that fit into two categories, the first is based on extended collective licensing (ECL) and the second is modelled on a non-exclusive license. Ringnalda (2011) claims that, of the five options considered by the European Commission four would:
Prescribe modalities of either an exception or a limitation, of a statutory licensing scheme
The fifth and preferred solution as one that allowed member states to devise their own legal technique to enable libraries to make their orphaned works available online, as long as prior permission was given for each work. Any work recognized as orphaned in on member state must be recognized as an orphan in all in order to ensure they are available throughout Europe, a principle is known as mutual recognition. This is necessary to ensure that a user need not comply with the rules of orphan works in 27 member states
Rosati (2013) outlines possible options considered by the Commission, including the adoption:
of a legally binding standalone instrument on the clearance and mutual recognition of orphan works, a specific exception to be added to Directive 2001/29 (the ‘InfoSoc Directive’), or guidance on cross-border mutual recognition of orphan works.
The favored solution was one that allowed member states to devise their own legal technique to enable libraries to make their orphaned works available online, as long as prior permission was given for each work. Any work recognized as orphaned in one member state, fooling a diligent search must be recognized as an orphan in all in order to ensure they are available throughout Europe, a principle is known as mutual recognition. This is necessary to ensure that a user need not comply with the rules of orphan works or conduct a diligent search in 27 member states. As Rosati (2013) argues:
On this basis, it would have been possible to make orphan works available online for cultural and educational purposes without prior authorization, unless (or until) the relevant right holder put an end to the orphan work status.
Besides the options outlined above legislative solutions to the orphan Works problem can include reducing liability for infringement resulting from the use of Works. And limitation of damages that can be claimed by rightsholders. These approaches were included in a proposed Orphan Works Bill which failed to make it through Congress in 2008. (At the Orphan Works Symposium in Bournemouth Prof. Peter Jaszi regaled us with a tragic tale about US attempts to introduce orphan Works legislation)
The eventual approach taken by the European Parliament was the adoption of an Orphan Works Directive on 25th Oct 2012, establishing a new exception to copyright exclusive rights for a number of orphan works. The final text incorporated minor amendments from the initial draft, these included articles 3, which states that a diligent search should be carried out in good faith, 5(1A) which states that a diligent search should be carried out in good faith and only prior to the use of the work, and provisions for the right to fair compensation for reappearing rights holders.
The purpose of the directive was to ensure a legal framework that ensured the lawful cross border online access to orphan works contained within the collections of institutions such as libraries, museums, archives, educational establishments, film heritage and public broadcasters with a public as part of their public interest mission. A directive was necessary to ensure cross border access, reduce transaction costs and facilitate the identification of rightsholders, in doing so it would advance the wider aim of building the knowledge economy. (Rosati 2013)
The eventual directive also restricted the overall scope of coverage, by excluding standalone artworks.
A flawed directive?
Despite the efforts of the EU Parliament to create a directive to enable the widespread digitization of orphan works, there are several flaws that mean it’s impact has been limited. Below I will briefly outline the main issues.
A structural problem?
As outlined above the issue of clearing orphan works is part of the wider problem of clearing the rights of in Copyright works for mass-digitization. All digitization projects that require individual rights clearance of works, face the possibility of high transaction costs that result from both seeking out rights holders and negotiating usage. In many cases rightsholders may request a fee for use of their works.
Conducting the diligent search can be time consuming and costly, not least because as many studies, have, highlighted (Borghi, Favale and Erickson, 2016, Favale, Schroff and Bertoni 2015, Favale, Homberg, Kretschmer, Mendis and Secchi 2013, Ringnalda ) the requirements are either too vague or too onerous, leading to institutions facing. excessive time costs spent trying to meet the requirement, to establish certainty.
Part of the problem is that unlike the UK Licensing Scheme there is no independent body to certify a search as diligent, organisations are left to judge for themselves to determine what constitutes a diligent enough search. Consequently, as Stobo, Patterson and Erickson (2017) highlight many institutions did not view a completed diligent search as sufficient to enable digitisation, relying instead on additional risk assessments. This because as Baker(2016) says:
Though the regulations require that a diligent search be conducted to determine the orphan status of a work, and set out relevant sources to be consulted for each category of relevant work, they fail to specify whether consulting each of the specified sources will automatically guarantee operation of the exception.
|Project design||Rightsholder search||Exhibition|
| Selection of material
Cost of exhibition development (calendar time, scheduling, space)
Knowledge costs related to identifying and handling IP
PR / reputation costs arising from embarking on infringing activity
Subscription fee to database required for DS (Favale et al. 2016)
|Labour cost of examining works (Dickson, 2010)
Labour cost of searching for rightsholders / DS (Dickson, 2010)
Labour cost of corresponding with rightsholders (Covey (2005; Stobo et al, 2016))
Material cost of communicating w/ rightsholders (Covey, 2005)
Alterations to project design incurred by rightsholder requests
|Fees paid to rightsholders located by DS
Fees paid to license orphan works in UK scheme or ECL
Alterations to display of work at request of rightsholder
Takedown of work on rightsholder re-emergence (Schofield & Urban, 2015)
Compensation paid on rightsholder re-emergence
TABLE 1: Characterising costs of rights clearance in three phases (Borghi, Erickson & Favale (2016)
A further issue with the directive highlighted by Baker(2016) concerns provisions relating to the reappearance of rightsholders. The regulations state that a reappearing rightsholder may put an end to a works orphan status, by providing evidence of ownership, but fails to make clear what standard of evidence is required or what form it should take form this should take. Furthermore, whilst mutual recognition of a work’s orphan status is guaranteed in the directive, it doesn’t make clear that there is mutual recognition of the termination of a work’s orphan status.
According to Ringnalda (2013) the proposed Directive intended to:
“ameliorate the burden of diligent search efforts by referring to a number of sources that should be consulted before a search is considered to have been sufficiently diligent.”
However, such an approach he argues fits the problem of orphan works but fails to resolve the issue of mass rights clearance.
“It may provide a legal technique that allows orphan works, but if libraries will be required to clear copyrights for each individual work we shall not have to worry about the orphan before their copyrights have already expired”
Stobo, Erickson and Patterson(2017) reported that whilst many institutions such as the BFI, and the British Library have made efforts to engage with the orphan works directive, several others including Wellcome Library, National Portrait Gallery, National Library of Wales, and National Library of Scotland have not made use of either the Orphan works Directive or the UK IPO Orphan Works Licensing scheme, instead relying on their own internal risk management policies.(See also Stobo et al 2013)
In my next post I will look at the proposed diligent search crowdsourcing platform (ENDOW) as a solution to the issues around diligent search. I also aim to report on the survey I am going to conduct of UK cultural heritage institutions to establish how they are approaching the management and use of orphan works in their collections. This research will contribute to an understanding of the effectiveness of the orphan works legislation and help to determine if it has been effective in enabling mass digitization as intended.
Baker, K. E. (2016) It’s a hard knock life: a critique of the legislative response to the orphan works problem in the UK. UCL Journal of Law and Jurisprudence DOI: 10.14324/111.2052-1871.061
Berne Convention – Berne convention for the protection of literary and artistic works, Paris Act of 24 July 1971, as amended on 28 September 1979. http://www.wipo.int/export/sites/www/treaties/en/ip/berne/pdf/trtdocs_wo001.pdf
Borghi, M., Erickson, K. and Favale, M. (2016) ‘With Enough Eyeballs All Searches Are Diligent: Mobilizing the Crowd in Copyright Clearance for Mass Digitization’, Chicago-Kent Journal of Intellectual Property, 16(1). Available at: http://scholarship.kentlaw.iit.edu/ckjip
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Rosati, E. (2013) The Orphan Works Directive, or throwing a stone and hiding the hand. Journal of Intellectual Property Law & Practice, Vol. 8, No. 4. pp 303-310.
Ringnalda, A. (2011) Orphan Works, Mass Rights Clearance, and Online Libraries: The Flaws of the Draft Orphan Works Directive and Extended Collective Licensing as a Solution . Medien und Recht International , Vol. 8 pp. 3-10. Available at: https://ssrn.com/abstract=2369974
Stobo, V., Deazley, R. and Anderson, I. G. (2013) Copyright & Risk: Scoping the Wellcome Digital Library Project’, 10(December). doi: 10.5281/.
Stobo, V., Patterson, K., Erickson., K. (2017) I should like you to see them some time’: an empirical study of copyright clearance costs in the digitisation of Edwin Morgan’s scrapbooks (Journal of Documentation – forthcoming)
Stratton, B. (2011), Seeking New Landscapes: A rights clearance study in the context of mass digitisation of 140 books published between 1870 and 2010. Project Report for British Library/ARROW, available at: http://www.arrownet.eu/sites/default/files/Seeking%20New%20Landscapes.pdf
van Gompel, S. and Hugenholtz, P. B. (2010) The Orphan Works Problem: The Copyright Conundrum of Digitizing Large-Scale Audiovisual Archives, and How to Solve It, Popular Communication. Taylor & Francis Group , 8(1), pp. 61–71. doi: 10.1080/15405700903502361.
Vuopala, A (2010) Assessment of the Orphan works issue and Costs for Rights Clearance European Commission. Available at: http://www.ace-film.eu/wp-content/uploads/2010/09/Copyright_anna_report-1.pdf