21 October 2009

Won't Somebody Please Think of the Orphans?

This is droll: the European Commission is finally waking up to the copyright orphans problem - thanks to some healthy panic induced by Google's book digitisation plans [.pdf]:

Orphan works are works that are in copyright but whose right holders cannot be identified or located. Protected works can become orphaned if data on the author and/or other relevant right holders (such as publishers, photographers or film producers) is missing or outdated. A work can only be exploited only after obtaining prior permission from the right holders. In the case of orphan works, granting such authorisation is not possible. This leads to a situation where millions of works cannot be copied or otherwise used e.g. a photograph cannot be used to illustrate an article in the press, a book cannot be digitised or a film restored for public viewing. There is also a risk that a significant proportion of orphan works cannot be incorporated into mass-scale digitisation and heritage preservation efforts such as Europeana or similar projects.

Libraries, universities, archives, some commercial users and several Member States claim that the problem of existing instruments, such as the Commission Recommendation 2006/585/EC 7 or the 2008 Memorandum of Understanding on Orphan Works and the related diligent search guidelines, is that these are not legally binding acts and that the issue of mass digitisation has not been addressed. Since non-legislative initiatives neither provide sufficient legal certainty nor solve the fact that using orphan works constitutes a copyright infringement, they advocate a legislative approach at the European level to allow different uses of orphan works. It is also stressed that obstacles to intra-Community trade in orphan works may emerge if each Member State were to adopt its own set of rules to deal with the problem.

For publishers, collecting societies and other right holders, orphan works are a rights-clearance issue. They are sceptical about introducing a blanket exception to use orphan works. For them, the crucial issue is to ensure that a good faith due diligence search to identify and locate the right holders is carried out, using existing databases.

The utter cluelessness and fatuity of the publishers' response is breath-taking: the problem is that the rights-holders *cannot be found* - that's why they're called "orphans". Demanding "due diligence" just misses the point completely.

At least this proves that publishers simply have no credible arguments against introducing an "exception" to use orphan works, for example in digitisation projects. And against their non-existent downside, the upside is just immense. Let's hope the European Commission is beginning to understand this.

Follow me @glynmoody on Twitter or identi.ca.


Crosbie Fitch said...

It's a combination of Idiocracy and the destruction of the Ancient Library at Alexandria.

In other words, we're looking at the moronic perpetuation of a culturally counter productive privilege by morons for morons (publishing corporations), simply because it helps their bottom line and damn the preservation of mankind's cultural commonwealth.

In the case of orphan works, instead of being unwitting arson, it's more like the slow fire of rust, i.e. the irresponsible neglectfulness typical of kids who leave their bikes out in the rain when they've been distracted by something more worthwhile, but who will scream blue murder if they see any other kid lay a finger on it.

Far better to harness the vast information storage resources we have to store great numbers of redundant copies, than to leave the last remaining books or manuscripts at the mercy of 'Soylent' caretakers still deliberating as to which shelf should next be emptied to stoke the building's central heating furnace.

This is why Google's book scanning should be embraced irrespective of any handwringing angst over the potentially unauthorised copies so made.

What would people prefer in a few decade's time?

1) The preservation of unethical legislation that prohibits unauthorised copies, OR
2) A digitally preserved cultural heritage that also includes printed works?

Sod the printers' prerogative, what's the point of them publishing mankind's knowledge if their petulance prevents its preservation?

We need to have a Fahrenheit 451 day, where in an act of civil disobedience people bring out their book scanners and wilfully take pains to preserve that which a corrupt state has prohibited them from preserving.

Then we'll see the police come out and burn these unauthorised copies, in just as corrupt a fashion as Amazon withdrew copies of unauthorised books from its Kindle.

Does it really take this sort of symbolism before people recognise that copyright is a corrupt constraint of their culture?

Glyn Moody said...

@crosbie: more fine poetic writing there: I think you've missed your calling....

Crosbie Fitch said...

Thanks Glyn. :)

I'd better get back to enabling poets to get paid in pennies by their appreciative patrons in preference to the privileged publishers that prey upon them both.

Andrew Katz said...

Bill Patry questions the use of the term "orphan works". His view is that if the copyright owners can't be bothered with the trivially easy task of making themselves discoverable (like putting up a page describing the work on wikipedia, referring to them as owner), then the work in question should more accurately be described as "abandoned".

"Orphan" gives the impression that the work has been tragically ripped from the loving bosom of its creator, whereas in reality the creator simply can't be bothered to do the minimum necessary to keep the connection going, until, of course, the cynical opportunity to make a quick buck arises. A more apt metaphor is child abuse.

This can all be very simply solved with a minimum-maintenance low-cost self-funding registration system, which any half-competent SQL-hack could knock up in half an hour.

If the owners don't re-register every five years, say, on payment of a trivial sum (£10?) to keep the copyright active, then it automatically lapses.

Glyn Moody said...

@Andrew: dammit, why didn't I spot that? It's the oldest trick in the book - choose a loaded name - and I fell for it.

Thanks: henceforth, these are works that have been cruelly *abandoned* by their publishers....