1709 Blog: for all the copyright community

Sunday, 2 November 2014

Orphan works and unpublished works - unloved or much loved? Are moves being adopted to foster better care?

The National Library of Scotland has joined a campaign to "free history from copyright laws that are leaving valuable pieces of cultural heritage unseen." What's this all about then? Well, it's not all about orphan works (more o that later on) and it's set against the backdrop of the centenary of the beginning of the First World War -  and criticies the provisons that certain unpublished pieces are protected under the 1988 Copyright, Designs and Patents Act until 2039.  This applies to all works created, but not published before 1 August 1989, where the author died before 1 January 1969. CILIP (the Chartered Institute of Library and Information Professionals) launched its campaign to urge the reform of “out-dated” and “inconsistent” copyright laws this week preventing many British institutions from showing certain works from World War One in centenary exhibits of the Great War. The National Library has now posted the blank letter below on its Facebook page, saying “there would have been a letter from a First World War soldier in this display (image shown). CILIP wants to reduce the term of copyright protection in unpublished text-based works to the author's lifetime plus 70 years  (rather than the set terms of 70 years from 1969).  Many of the soldiers of course perished in the 1914-18 War. The Intellectual Property Office said the government will shortly publish a consultation on reducing the duration of copyright on those works. There is a really good paper on this, andthat's the CREATe website and written by Victoria Stobo (University of Glasgow) here.

That said, there has of course been developments with orphan works (works which are protected by copyright but whose creators (or rather owners) cannot be identified or found)  - and as Eleonora reported just four days ago, the new orphan works licensing scheme set up pursuant to s77 of the Enterprise and Regulatory Reform Act 2013 has launched. This means that it is now possible to apply for a licence to use "at least 91 million culturally valuable creative works - including diaries, photographs, oral history recordings and documentary films" with  UK IP Minister, Baroness Neville Rolfe, saying: "The UK's trailblazing orphan works licensing scheme enables access to a wider range of our culturally important works. The scheme has been designed to protect right holders and give them a proper return if they reappear, while ensuring that citizens and consumers will be able to access more of our country's great creations, more easily." The UK scheme will be administered by the UK Intellectual Property Office.

The Department for Business, Innovation and Skills has now given several examples of how the new scheme could work:

- The Tate Gallery would be able to use unpublished literary works of artist Alfred Wallis, who died in 1942 with no surviving family.

- The Museum of Childhood has tried and failed to trace the owners of photos taken for toy manufacturer Lines Brothers, which went bankrupt in 1971, while the photographic studio is also thought to have closed.

- The Museum of the Mind wants to use creative works by patients of Bethlem Royal Hospital, which were often made anonymously.

- The National Records of Scotland could use unpublished historical maps and plans where the author's name may be known but their families cannot be found.

Not that everyone is that happy - last year, photographers and illustrators launched a petition complaining that their work could be used online by others providing they "have made a small effort to search for the original owner" (a criticism of the requirement for potential users of orphan works to undertake  a "diligent" [reasonable] search within certain defined parameters). With 28,756 signatories the e-petition said "A new legislation that has been rushed through parliament with no thought has now reached royal assent. This legislation means that photographers and illustrators alike will see their artworks legally taken and used for another's own gain." With more than 10,000 signing up the Government responded and that can be found here . 

More here on orphan works licensing from Tom Ohta (Bristows) and more on FREE OUR HISTORY - REFORM COPYRIGHT here. Campaign supporters include the National Library of Scotland, the Imperial War Museums, the University of Leeds and the Chartered Institute of Library & Information Professionals.  


Andy J said...

Oh dear Ben, that was a bit of a muddled up post!
Orphan works and unpublished works are two separate things, although clearly an orphan can be published or unpublished.
The IPO has in fact issued the consultation on amending the rules on unpublished works (see here) and all being well we should see the necessary SI in due course. But don't get fooled by the treacle words from CILIP and its members - the libraries, archives and museums - who will be the main beneficiaries of this amendment. They will be able to publish to unpublished works they hold but the works won't be in the public domain any quicker than if the old rules (ie in copyright until 2039) had remained in place. This because the publication right introduced by SI 1996/2967 gives the publisher (here, read library, archive or museum) a 25 year exclusive right, similar to copyright, to exploit the work. Coincidentally, 2014 + 25 = 2039.
The orphan work licensing scheme (SI 2014/2863) is less attractive to the libraries and archives because they have to satisfy the IPO as to the due diligence, and pay both a licensing fee and an administration fee. However if they opt to use the EU mandated permitted use system (SI 2014/2861) they can self-certify over the diligence of their search, and they do not need to pay any fees, unless the owner of the work comes forward.
But there are several untidy anomalies remaining. For example, the EU permitted use of orphan works (SI 2014/2861) does not apply to dramatic, musical or artistic works (other than those contained within literary works, eg illustrations), and it does not apply to unpublished works which have not been publicly accessible.

Ben said...

Yes of course they are separate Andy. I had thought I had made that clear - not least in the 'headline' - my apologies if not. I (personally here) was more intersted in the 'politics' behind where CILIP were coming from than the legal minutae which many others better tha me have commented on, here on this blog and on others. That said, thank you for your words on the IPO's orphan works licensing scheme and the remaining anomalies. Very helpful.

Anonymous said...

"Life + anything" copyright terms of any sort ought to go, because they make honest clearance in bulk essentially impossible for works created after about 1870.

Publication + 95 years should be enough for anybody.

And if that means renegotiation or large-scale secession from Berne, we should bring it on.

The world has changed since 1971. "Life+" is no longer fit for purpose.

Andy J said...

anon @02:03
I am baffled by your choice of dates. What is the significance of 'about 1870'? Taking UK law as an example, if an author died in 1943 his work would now be out of copyright. Say he was aged 90 at his death, this would make him 17 years of age in 'about 1870'. Statistically, is this an age at which authors are particularly prolific?
And since you mention Berne, I assume that the reference to 1971 is to the Paris Act of the Berne Convention of that year. If so, then this is somewhat misleading since it was Article 7 of the Berlin Act of 1908 (amending the original Berne Convention of 1886) which first introduced the concept of a copyright term of life plus to international copyright jurisprudence, although obviously many countries had already by then adopted a similar formula in their domestic legislation. It is even more the case that life has changed since 1908, as indeed has been reflected in the various copyright term extensions since that time.
While I am no fan of the current life + 70 years as a reasonable term for copyright, I can't see how your proposal greatly improves the situation. For example how would it deal with works which were unpublished?

Anonymous said...

@AndyJ: The 1870s is the date currently applied by Google Books and by the Hathi Trust. Books that they have scans of that were published after this date they will show only to Americans, not to Europeans. So it is their assessment that under Life+70 honest clearance in bulk of material published after about 1870 is essentially impossible.

As regards term, if I was the master of the SCCR, the compromise that I think seems least impossible would be "Life+70 or Publication+95 -- whichever is the shorter".

Yes, 95 years is still a *very* long time -- much longer than the creators were promised 95 years ago, and I would think on most analyses a lot longer than the economic optimum.

But I think 95 years has three things going for it.

(1) It's already the standard for corporately-made works in the United States, so would cause minimum change for those works.

(2) For the next four years, everything published 95 years ago will already be in the public domain in the United States; so there would be no immediate step-change of works becoming public domain there, only a slow additional trickle after 2018.

(3) It puts works into the public domain in time for the centenary of their creation to be celebrated, and guarantees the public that everything a century old is good to re-use.

So that's what I would be pushing for, if I were the new EU VP for Digital Single Market, if I were serious about wanting to sort out this mess.

Andy J said...

Anon @ 21:38
Thanks for the explanation.
I am still slightly confused as to why the 1870s is seen as a suitable watershed. If Google and the Hathi Trust have a differential access policy (I wasn't aware of that), then surely up to 1923 would be safe for the US only readership.
Of course the principal justification for the current life plus system is that this provides a 'pension' from royalties for the artist or author, and also provides for their heirs. In reality, very few composers or authors earn that much to be able to survive on their royalties alone. This is especially true for works which out of print. And of course this doesn't recognise the special case of those artists who produce paintings or similar one-off works from which there are no royalties. That is why VARA and various other Artist's Resale Rights laws were set up, but that doesn't justify retaining the life + system for copyright in such works. And then there's the vast quantity of works where the author has signed away their economic rights in return for a lump sum, which really ought to be treated in much the same way as the US law treats corporately owned works. Here your publication+ proposal makes more sense, although I would argue that +95 is a ridiculously disproportionate term, and is solely the result of the Disney Corporation's lobbying prior to the US 'Sonny Bono'' Term Extension Act 1998. By disproportionate I mean in relation to the term for sound recordings, cinematic films, patents or designs.
But the real problem is that we are locked into the various straitjackets created by Berne, TRIPS et al and there is no willingness on the part of legislators to reject these international agreements and go back to first principles in order to design a system which equitable and workable.
Anyway, apologies for hijacking your comment.

Anonymous said...

Google and Hathi currently show a U.S. reader anything published anywhere before 1923.

But they won't show an EU reader anything published anywhere after the 1870s.

So, yes, 1923 is fine for the US-only readership. But the EU readership is locked out in the cold.

As for legislators, some are starting to be aware -- Neelie Kroes was one, and thanks to her the "do-nothing" draft of the copyright white paper was spiked. Jean-Claude Juncker appears to be another, insisting on major copyright reform as a priority for his commission. Some of the MEPs -- eg influential people like Marietje Schaake -- are aware of some of the issues. And Andrus Ansip wants to be able to watch Estonian football in Brussels, with a subscription that he can use anywhere in the EU. So there's definitely a change coming.

As for Berne, a change there is not impossible.

According to people I know in Brussels, it used to be that when they raised this issue and talked about changing Berne, the civil servants at DG Markt looked at them as if they had just suggested going to live on the moon.

But apparently that is no longer the case, and they feel they now get a serious hearing.

Like Tinkerbell, it's a question of believing it's possible. It's a question of making sure it's on the agenda, every time there is a discussion. Drip, drip, drip, ... if the point is repeatedly made that Berne should be changed, that pure Life+X is a nonsense that needs to be fixed, that we *shouldn't* necessarily be celebrating every time Jeremy writes a piece acclaiming another country for acceding to another bit of Berne -- if that message is made often enough, then reform will come to be seen not only as possible, but as inevitable.

Berne is not unchangeable. Revision *is* possible. And so is secession.

Anonymous said...


"Like Tinkerbell, it's a question of believing it's possible. It's a question of making sure it's on the agenda, every time there is a discussion. Drip, drip, drip, ... if the point is repeatedly made that Bernse should be changed, that pure Life+X is a nonsense that needs to be fixed, that we *shouldn't* necessarily be celebrating every time Jeremy writes a piece acclaiming another country for acceding to another bit of Berne -- if that message is made often enough, then reform will come to be seen not only as possible, but as inevitable."

Real life isn't like Peter Pan, however much you wish it was so. Perhaps you have little experience of working with adults.

Berne was devised to benefit creators and will not be revised unless it benefits creators. Nor will the delicate balance of interests be destroyed for the short-term benefit of huge US technology multinationals.

Kroes has gone, her staff have been deprogrammed, and Ansip will find out the hard way that coercion is not acceptable to Europeans.