The Importance of Being Attributed

A few weeks ago, the Enterprise and Regulatory Reform Act 2013 received Royal Assent. Among its rag-bag of measures are some dealing with the vexed issue of orphan works (or hostage works as they should really be called.) 

On Open Enterprise blog.

Copyright Holders Will Define Details Of UK's Orphan Works Bill, But Not The Public

The UK's new orphan works legislation allows works to be classed as orphans only after a "diligent search" has been conducted to find the owner. The fear expressed by some is that this "diligent" search won't be very diligent, allowing publishers to use materials that aren't orphans. That's actually wrong for a number of reasons, as Techdirt explained recently, but the continuing furor from photographers in particular has been such that the UK's Intellectual Property Office (IPO) felt compelled to issue a document entitled "The Enterprise and Regulatory Reform Act 2013 –Your photos and you" (pdf) explaining how the system would work, and why the fears were unjustified. 

On Techdirt.

EU Directive On Orphan Works So Bad It Makes Things Worse

Orphan works (or maybe that should be "hostage works") have become a really hot area in the copyright debate. That's because increasing numbers of people have realized how insane the current situation is whereby millions of older works, that are out of print and have no obvious owners, remain locked away because of copyright. This has led to various proposals around the world to liberate them, while still protecting the copyright holders if they later appear and assert ownership. 

On Techdirt.

They're Not 'Orphan Works', They're 'Hostage Works'

Words matter -- just think of the number of times flame wars have broken out in Techdirt's comments over whether you can "steal" music or films. But one phrase that nobody really questions is "orphan work". And yet, as Lydia Pallas Loren points out in a brilliant paper, this is a loaded term with a very particular agenda:

On Techdirt.

Strange: Vote Against Freeing Up Orphan Works Achieves 113% Turnout In EU Committee

One of the unresolved problems of copyright is how to deal with huge numbers of orphan works -- creations still in copyright, but whose owners can't be traced to give permissions that may be necessary for re-use. The European Parliament's JURI committee met recently to vote on a new report on possible permitted uses of orphan works, prepared by the Polish Member of the European Parliament, Lidia Geringer de Oedenberg. 

On Techdirt.

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.

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Copyright Reform Made Easy

As readers of this blog will have noticed, I'm not a big fan of intellectual monopolies like copyright or patents. For the former, I'd prefer a return to the original term of 14 years, or even less. But even I recognise that this is not going to be easy to achieve in the short term, so until there's an outbreak of mass sanity, we need a stopgap solution.

I was reminded of what that might be by the following post on Techdirt about orphan works:

the real shame is that the whole reason we need an orphan works bill in the first place is due to how screwed up copyright law has become since switching from a "formalities" approach to one where everything is automatically covered by copyright. Under the old system (pre-1976 Act in the US), in order to get a copyright, you had to register, and then at certain points, re-register it, to have and keep it covered by copyright. Thus, any such "orphan" works fell into the public domain after a short period of time -- and it worked fine. There was no "orphan works" problem, because those works that no longer that weren't being used for commercial purposes went into the public domain in a relatively short period of time. The most amazing thing, though, is that very few of those supporting orphan works legislation seem to recognize that the whole "problem" is one they made themselves by extending insanely long copyrights to pretty much everything.

At the time, I imagine one of the arguments against the system of re-registration was that it was cumbersome. But thanks to the wonders of the Web, such a system would be trivial to use: works could be registered online, and re-registered just as simply. It would take less than a minute. And to those who argued that even that was too much trouble, I'd suggest that the copyright clearly isn't really worth having.

In a way, it's self-selecting: if the copyright is still valuable, then copyright owners won't mind spending a minute renewing it every few years (I'd suggest every 14). If it isn't worth renewing, it will fall into the public domain. Those worried about "losing" their valuable copyright won't - because if it's so valuable they will renew it. So the only works that enter the public domain are the ones that no one cares enough about.

Of course, this is only a sticking-plaster solution, rather than a real fix, but it would avoid the absurd situation we have today of millions of works that are "protected" - that is, blocked - by copyright, with no one taking an active interest in them. And it would start to get away from the pernicious notion that everything comes with copyright by default: monopolies should be the exception, not the rule.

Follow me @glynmoody on Twitter or identi.ca.

European Digital Library - An Update

I've written about this project several times; here's the latest info:

Europe's cultural institutions plan to launch a prototype of the European digital library in November 2008. It will give direct access to at least 2 million digital books, photographs, maps, archival records, and film material from Europe's libraries, archives and museums. By 2010 this will already have rapidly grown to include far more digital objects than the 6 million originally envisaged as more institutions make their digitised assets searchable through the European digital library.

For a steady growth of the European digital library, two key issues need to be tackled: the financing of digitisation and solutions for making copyrighted works searchable through the European digital library. In its yesterday's meeting the high level group discussed:

* new ways for funding digitisation through public private partnerships;
* solutions for mass-digitisation of out of print works and orphan works (for which it is very difficult to locate the rightholders). By June next year the group should find an agreement on dealing with orphan works (including criteria for searching for rightholders);
* the issue of access to and preservation of scientific information (see IP/07/190). Scientific publishers, libraries and scientists confirmed their intention to work together in an experiment with open access to scientific publications after an embargo period.

It's particuarly pleasing to see orphan works mentioned, since bringing them online would make a huge difference. It's also good to see scientific publishers making positive noises - though we'll need to see the details. (Via paidContent:UK.)

Have Pity on the Orphans

Oh dear, Larry's still having no luck rolling back US copyright law:

In a move that's a blow to the U.S. movement to reform copyright law, the U.S. 9th Circuit Court of Appeals ruled against the Internet Archive's Brewster Kahle, in his lawsuit to allow orphaned works into the public domain.

Rejecting the argument of Larry Lessig, the court decided the case was too close to Lessig's Eldred copyright suit of 2002, and that's settled business

BLimey

The British Library is not normally regarded as a beacon of enlightened thought when it comes to intellectual monopolies - it's in cahoots with Microsoft for much of it's IT stuff. But this "IP Manifesto" is decidely clueful:

1 Digital is not different – Fair dealing access and library privilege should apply to the digital world as is the case in the analogue one.

2 Contracts and DRM – New, potentially restricting technologies (such as DRMs /TPMs) and contracts issued with digital works should not exceed the statutory exceptions for fair dealing access allowed for in the Copyright, Designs and Patents Act.

3 Archiving – Libraries should be allowed to make copies of sound (and film) recordings to ensure they can be preserved for posterity in the future.

4 Term of copyright – The copyright term for sound recording rights should not be extended without empirical evidence and the needs of society as a whole being borne in mind.

5 Orphan works – The US model of dealing with orphan works should be considered for the UK.

6 Unpublished works – The length of copyright term for unpublished works should be retrospectively brought in line with other terms – life plus 70 years.

(Via Open Access News.)