Has the UK abolished copyright? Analysis of new orphan work legislation

Please, sir, I want some more copyright protection

Please, sir, I want some more copyright protection

Has the UK abolished copyright law with the passing of orphan works legislation? I’ll answer quickly with Betteridge’s Law of Headlines: NO.

However, if you listen to some copyright maximalist outlets, and particularly to the photograph lobby, you would believe that all copyright has been abolished as of now. Just look at some of the headlines:

Although all of the above coverage is a distorted exaggeration of the actual law, one has to give some credit to Andrew Orlowski for beating everyone to the news and setting the tone of the debate by warning that Google owns everyone’s pictures now, and by coining a media-friendly term Instagram Act. Well played, sir, well played.

So, I will first explain what are orphan works, why do they matter, and what is actually in the law.

Orphan works

The term orphan work is widely used to define copyright works for which no author can be found after an exhaustive search. This area has been identified as of serious concern for galleries, archives, publishers, film-makers, museums, libraries, researchers, universities, and private users, as sometimes good-faith uses are not possible by the difficulty of finding the owner of a work A 2006 report by the US Register of Copyrights found that:

“Archives, libraries and museums maintain vast collections (in some cases, millions) of photographs, very few of which have any indication of who the author was. Typically these institutions acquire these works by donation, such as where individuals give personal effects to a museum upon the death of a family member, or where a scholar donates professional writings to a library upon retirement, and similar situations. While these occurrences are common, the donors rarely have information about the copyright provenance of the materials they donate. These institutions then face a dilemma in striving to meet the expectations of donors and in fulfilling their institutional purpose of preserving and making works available, while also complying with the law of copyright and minimizing their exposure to liability for infringement.”

A EU report similarly stated the problem of orphan works sating that “Comprehensive, large scale digitisation and online accessibility could be greatly hampered, if adequate solutions are not found to the problem of orphan works.” A joint report by JISC, the British Library, the BBC, and other public bodies found that the amount of orphan works held in public sectors institutions ranged from 5-10%, with some sectors holding considerably higher percentages. In total, the report found that there were an estimated 25 million orphan works held in public collections.

Both the Gowers and Hargreaves reports on IP made very strong recommendations in favour of orphan works legislation. The Hargreaves Review specifically commented that:

“These works raise particular difficulties in the context of mass digitisation. Libraries and archives seek to digitise collections, and have the technological capacity to do so and to provide access to them for users, but they are unable to act where rights holders cannot be found for some of the works, because to digitise those works could be a copyright infringement. The issue is exacerbated in that where rights information is lacking, it is often not even clear whether works are still in copyright or not. There are two distinct situations to consider: mass licensing of collections which include some orphans, and use of individual orphan works.”

The dismissal of the orphan work issue presented by some of the articles opposing changes to the legislation is therefore laughable. This is a serious issue that affects memory institutions, but also stifles important digitisation efforts by private bodies.

Legislative solutions

There are usually three solutions offered to solve the orphan work conundrum. First is to create some form of exception or limitation to existing rights. The second is to create a form of licensing scheme in which bodies pay a price that will eventually be given to authors, if they can be found. The third is to create some form of register of orphan works. Some of the most notable concrete solutions out there are:

  • The US tried to implement legislation on the subject, particularly in the Orphan Works Act of 2008 and the Shawn Bentley Orphan Works Act of 2008. After strong opposition from the commercial photographers lobby, both efforts failed.
  • Canada has in place an “Unlocatable Owner Provision”, by which a person can apply for a licence to the Copyright Board if, after exercising due diligence, an author cannot be found. Needless to say, copyright seems to be doing quite well in Canada despite having this type of licensing scheme in their legislation.
  • The UK’s Digital Economy Bill contained a section on orphan works, but after fierce opposition from photographers, it was removed.
  • The EU has passed the Directive 2012/28/EU on certain permitted uses of orphan works. This mostly sets out a regime for the use of orphan works by libraries, educational establishments, archives, public broadcasting organisations, and museums. This provides an exception or limitation to the right of reproduction and making available to the public to the benefit of any of the listed institutions.

So, this is not really a subject that benefits great media organisations.

The UK Act

Enter the source of so much fear, uncertainty and doubt, the Enterprise and Regulatory Reform Act 2013 (ERRA). This is a broad piece of legislation that makes several changes to existing laws across the board, including finance, employment, competition law, reduction of red-tape, and copyright licensing.

The ERRA is controversial because it is a different solution to that proposed by the EU Directive, it is not limited to memory institutions such as archives, libraries and museums, but it is a broad commercial-use licensing scheme. The new section of the UK’s CDPA will read:

“116A Power to provide for licensing of orphan works
(1) The Secretary of State may by regulations provide for the grant of licences in respect of works that qualify as orphan works under the regulations.”

This says that the law is not the final word on the subject, and that we have to wait for the Secretary of State of provide more detail through forthcoming regulation, which one has to assume will be released in the near future. This serves to explain the very acrimonious language that is being used by the opponents of orphan work legislation, they are trying to force a U-Turn from the government, or at least a very watered-down licensing scheme that will be good for nothing.

The key point seems to be in this section:

“(3) The regulations must provide that, for a work to qualify as an orphan work, it is a requirement that the owner of copyright in it has not been found after a diligent search made in accordance with the regulations.”

The definition of “diligent search” will be vital. There are several indications of how this will be defined. The Canadian act is quite clear that this search has to be exhaustive. Similarly, the EU Directive defines diligent search as:

“For the purposes of establishing whether a work or phonogram is an orphan work, the organisations referred to in Article 1(1) shall ensure that a diligent search is carried out in good faith in respect of each work or other protected subject-matter, by consulting the appropriate sources for the category of works and other protected subject-matter in question. The diligent search shall be carried out prior to the use of the work or phonogram.”

It is quite clear that there will be a very high-threshold of what constitutes an orphan work, a simple Google search will not suffice. Countries which have enacted similar legislation do not seem to have had problems so far, and no abuse has been found, at least none that I am aware of, and you can bet that orphan works opponents would be shouting bloody murder if there had been something already.

It is also quite clear that photographers have had fear instilled into them through a concerted campaign. The law will not be likely to affect new works, these have to be assumed to be under copyright. Similarly, metadata is still strongly protected in copyright law by Rights Management Information (see a presentation on the subject that I made for WIPO). Professional photographers should still be able to provide metadata and embed it in their pictures, and such data cannot be removed! So any professional photographer should be as protected after the publication of the ERRA as they were before. It is also highly unlikely that Google will start commercially using images right away, which is the not-very-subtle accusation by Orlowski and his ilk.

We still have to wait for the regulations to come out, but the over-the-top rhetoric and scaremongering have to stop. Orphan work legislation is a good thing, it helps digitisation efforts that will have both cultural and commercial benefits.

18 thoughts on “Has the UK abolished copyright? Analysis of new orphan work legislation

  1. Good post — I had the same general reaction to the Guardian piece. I'm not sure what the right calibration is for "diligent search," but this is clearly a significant problem (we established a recording system for real property, didn't we?) and we need a solution. I imagine is has to be true, though, that the smaller scale (and amateur) artists are going to be the ones surrendering "orphans" in most cases.

    On your metadata point, there are some concerns about whether platforms are stripping that information out. See this from Rebecca Tushnet: http://tushnet.blogspot.com/2013/05/so-how-soon-d

      • Metadata stripping may look like a conspiracy to steal the valuable juices^Hwork of photographers but there are two good reasons for removing metadata in order to help the users of social networking sites. The first is that metadata is a privacy problem. The second is that metadata is a bandwidth problem.

        Photographers should join DACS. They always brag how much money they get for their members from unauthorised use of copyrighted works. *I'd* join DACS if they did CC license enforcement…

        The real story here is the one you identify near the end. There has been a concerted campaign to terrify photographers into a moral panic, and it's not the first time this has happened.

        • Privacy problem, absolutely. Bandwidth problem, not so much. Metadata is a few hundred bytes. The images in question are typically many hundreds of thousands of bytes.

  2. There's also some indication as to how the government intended/intends to act re. the definition of diligent search, etc. in the IPO's response to their Consultation on Modernising Copyright back in 2011: http://www.ipo.gov.uk/response-2011-copyright.pdf

    In particular:

    • Diligent search before something can be used as an orphan work is key to the scheme. The Government believes that it is important to strike the right balance between a relaxed standard of diligence and for an “awaiting claim” approach, as against ensuring that absent rights owners’ needs are protected. The Government is mindful of the need to ensure the process is sufficiently straightforward to be useful to potential users. The authorising body will verify the diligence of the searches.

    • Commercial and non-commercial uses of orphan works in the UK will both be permitted, both to maximise the economic potential of proposals and because making a firm distinction between the two is difficult in practice.

    • This permission should come at an appropriate price – a market rate, to the extent that one can be established (though the difficulties that may attend establishing that, for example in respect of works not created for publication that are in museums’ collections, are noted).

    • This price should be payable in advance (or at agreed times if there is a royalty element) and set aside for any rights holders who may still appear even after a diligent search has not found them.

  3. There are two issues skated over by the article above.

    Firstly that in the new UK legislation the emphasis is not on deriving a “greater good” by keeping the new rights confined to non-profit museums, galleries and academic institutions; a kind of “fair use”, as exists in other countries. The UK legislation has been overly influenced by the big publishing and media corporations to allow them to PROFIT from this new law, ironically these same businesses are the ones currently accused of not paying their full taxes. Way to go UK parliament.

    Secondly the writer tries to say there will still be full copyright protection under the new law, legally this may be dubious at best depending on how a court perceives the moral rights part of copyright protection. Permission to license/use is at the heart of copyright and IP law, by taking that right away from the copyright holder it makes the concept of copyright meaningless.

    Most creators that I know would have had little issue with a genuine attempt to unlock collections of orphan works held by museums ands academic institutions, but it is a very different matter if Google want to license an orphan work, perhaps an image of mine of an aircraft, to advertise, say, a defence contractor company report.

    The very least that Hargreaves should have done is to demand that removing/altering Metadata without the copyright holder’s permission, is a criminal offence.

    • Protection for metadata stripping already exists in the law, see s296ZG of the UK CDPA 1988.

      I will also have to completely disagree with the take on how widely used this new power will be. Nobody is taking away any rights, the law simply allows fo a user to apply for a licence after an exhaustive search of the author of a work has been made. This is very different from the scaremongering peddled at the moment about losing rights.

      As I mentioned, there are countries which have similar schemes, if you are afraid about the scheme, take a quick look at the Canadian copyright office, which has only issued 22 licences during the existence of orphan works legislation.

      This is designed to be used in very few cases, all of the fears of Google owning everyone’s copyright is quite simply a fiction in Andrew Orlowski’s mind.

  4. Great piece Andres – I'm so pleased someone has taken the time to respond to some of the claims being made about this recently. I responded to Andrew Orlowski's piece with similar comments to how you have presented your argument here and he just claimed I don't understand the law I was quoting. Sigh.

    Thanks!

  5. Of course metadata can be removed from a photo. Maybe it *shouldn't* be, but as a technical matter nothing could be easier.

  6. The two biggest issues I see are that: 1- a diligent search is not spelled out, and watermarking the hell out of your artwork depreciates the quality of its appearance online. This only benefits the large corporations that want to use artwork for free. There is little to no protection left to the small artist, as there is not adequate software to search for image-matches within websites across the web. 2- The legislation places additional time and monetary requirements on the individual in order to protect their work by requiring that they file for a registration with every. single. piece. A prohibitively costly means of protecting your work, when previously "first publication" was enough to protect an artist or writer's intellectual property.

    And to answer "what does the government get out of this?" They receive money from the private interest groups, the corporations responsible for pushing the concept of the legislation. They might even receive sales tax from the filing fees if the registration process is handled by a private party. If it is handled by a government agency, then they receive the entirety of the filing fee.

    Corporations have all the money and all the power, and they still don't want to pay artists what they're worth. I call BS.

  7. Orphan Works legislation does not help the author. I am an author published by Heinemann and the Women’s Press. While I was in South Africa and my address was known to both publishers, someone over here was putting together a little booklet  that was to be circulated in schools – perhaps not easily discovered.  I returned home and one of the publishers contacted me. The person putting together the booklet came up to meet me and said ‘Since when did you have a literary agent?’ .My agent agreed that I should read my short story on to a disk in a recording studio. I received a contract. I made alterations to the contract after consultation. But when I received the booklet – my short story was printed in full and occupied more than half of the booklet – I discovered that the front pages had been placed at the back of the booklet.  The title of my short story was removed. My name was removed. So reading the booklet with a photo of Mahatma Gandhi ?? and a drawing of the South African flag, it an on fluidly to my short story – as if written by the other  individual. At the back of the book the copyright symbol was altered to include the name of the person alongside mine. Something I had not agreed to.  The Society of Authors and my agent, could not negotiate with these people to add a errata page, alter the booklet or to shred it. The publisher  sent me a cheque for £70. I returned it. They refused to accept it. It remained with my agent. They refused to open the recorded delivery letters I submitted. I have received no royalties from them except a cynical letter thanking me for agreeing to their publishing my short story. Is this fair use? Is this an Orphan Work? Is this what people working in education are allowed to do? The person who posted the article above, and the architects of the Orphan Works legislation now have an example to mull over.
     .

    • @Agnes Sam  
      I’m sorry to hear about your case, but I think you might be confused. Orphan works legislation hasn’t been implemented yet, so your case shows the failure of the system as it is (WITHOUT orphan works). Nothing in your case is related to orphan works as proposed. 
      Seems to me that your case is not very complex, and there are lots of legal remedies for the situation as you describe it. You might have a case under moral rights, as attribution and integrity are part of copyright. Depending on the terms of your contract, you could also have sued for breach of contract. 
      There is no fair use in the UK, and as I said there are no orphan works yet. It seems strange to me that you use your case to bemoan a piece of legislation that still does not exist, while failing to take legal advice and make full use of the existing law. If you choose not to enforce your rights, that’s your prerogative, but do not criticise a piece of legislation that has not been fully implemented yet.

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