1709 Blog: for all the copyright community

Friday, 15 May 2015

Please Sir, can I have some more?

A couple of weeks ago we published a piece outlining the first six months progress with the IPO's orphan works licensing scheme. And we promised to take a second look at the subject by examining the experience from the user's point of view. The majority of applications so far have come from institutions such as museums and archives. This is to be expected, firstly since they were the bodies which principally lobbied for the right to licence orphans, and also because up to now, the wider public is probably not that aware that the licensing scheme exists.

As a result, we intend to look at the experience of two such institutions: the Leeds Museums and Galleries (LMG), and the Museum of the Order of St John as they underwent the licence application process.

But before getting into the detail of their respective applications, why did they choose to use the IPO licensing system, as opposed to the EU Directive Permitted Uses regime? Well the simple answer is that both institutions wanted to licence the use of images, and the EU Directive doesn't apply to artistic works, unless they are incorporated within a written work such as a book, journal or newspaper, or they form part of a film or audiovisual work. Although the photographs the Museum of St John wished to use were contained in a personal scrapbook, the museum staff felt that this fell outside the strict provisions of the EU Directive since the photographs could be seen as stand-alone items.

Case One
The LMG have among their extensive collection of fine art, a painting by the artist Charles Ginner, which they wished to digitise for inclusion in their online database. Ginner is known to have died in 1952 and so his work is still in copyright, but Leeds Museums have been unable to locate an heir to his estate. Thus the licensing scheme was an ideal solution to their problem. Alison Glew, the Copyright Project Officer at LMG, says the process of applying for a licence was straightforward and that they will be using it again as they have over 100 other orphan works they wish to include in their Collections Online project. She advises other users to carefully study the IPO's guidelines to see how the system operates and the costs involved, before submitting an application. She suggests that applicants allow plenty of time to complete the diligent search procedure, and if you are taking advantage of the facility to apply for up to 30 individual works on one application, make sure you organise all your data before starting to complete the online application form.

Case Two
Veronica Nisbet
As part of its World War One commemorations, the Museum of the Order of St John obtained a grant from the Heritage Lottery Fund to stage an exhibition telling the story of Veronica Nisbet, a nurse who was one of the 45,000 volunteers who served in the Voluntary Aid Detachment during the First War. Veronica worked in the St John Ambulance Brigade Hospital at Étaples in France. The centrepiece of the museum's display will be a scrapbook owned by Veronica at the time she was working in the hospital in Étaples, which includes some photographs taken by her, and others by unknown photographers, as well as sketches and press cuttings. Although the museum had obtained permission from her estate to use Veronica's scrapbook, the authors of many of the other photographs were unknown. It so happened that during the diligent search process the identity of some of the authors was unearthed, but there was some doubt about the remainder, and whether some of the more professional photographs had been previously published or not. Erring on the side of caution and best practice, the museum decided to obtain licences for any images where doubt remainded. Peter Eaves, who works at the museum and handled most of the application work, says he found the IPO staff helpful, but the online process itself was anything but straightforward. Given the large volume of images they had to process (175), the museum initially found the process of uploading the required data to be confusing and convoluted. The problem lay in the fact that the application had to be completed in two stages, an initial basic entry, followed up by the addition of further details and a copy of the image itself. Since the image did not form part of the initial data to be entered, there was room for subsequent information to be entered for the wrong image. Peter felt it would have been better if the initial basic entry had included the image, as this was the unique item in each application, whereas many other details might be common to several images. He reiterated the point made by Alison Glew, that meticulous organisation of your data is essential prior to beginning an application, especially if there are multiple works to be included. Indeed Peter went so far as to advocate the creation of a spreadsheet to keep track of all the data, together with check boxes to mark off when each stage in the process has been completed. The final entry is then the actual licence number, and the whole document becomes an important record of the search and application process.

During the debates in the House of Lords on the orphan works clause in the Enterprise and Regulatory Reform Bill, much was made of the potential cost to institutions of having to carry out the search process and pay licence fees. The Museum of the Order of St John have kindly supplied details of the total cost of all their applications, which was £491, inclusive of the actual licence fees. Given the total grant from the Lottery Fund for this project, this outlay seems modest. The Veronica Nisbet exhibition will be unveiled on 7th September at the Museum's St John Ambulance Gallery in the City of London and will also be available in interactive format online at the same time.

We asked the IPO for their comments on how the first six months have gone, but to date they have not responded  and their comments now appear below. If the orphan works licensing system is to be the success that most museums and archives anticipated, we hope the IPO will address the concerns raised about the order in which data is required to be entered into the online forms. It is appreciated that the website is still in beta format and we trust that minor structural changes are still possible without endangering the viability of the project overall.

For more on the experience of the Leeds Museums and Galleries: see here
For more about the Veronica Nisbet project: see here (pdf) and about her diary: here

Addendum: The following response has been received from the IPO:
"As you know, the first six months of the orphan works licensing scheme has produced applications for a wide variety of orphan works, including novels, fine art, photographs, musical notation, music recordings and newspaper articles, and we are really pleased with how it is going. Some applications have been particularly interesting, including the licence granted for the reading of an orphan poem at the Gallipoli commemorations on 25 April at the Cenotaph.  We hope that more people will make applications as they become aware of the scheme and its benefits.

During these early months, we have been working with applicants to ensure that their applications are robust, which is why many applications show that we await further information from the applicant.  We intend to review the scheme after 12 months, and will look at the type of applications made, licences granted, withdrawn or refused, as well as gathering comments on the system.

Our diligent search guidance has been well-received, and we are aware that some applicants have found right holders in works after using the guidance.  We also inform organisations about the EU Directive on orphan works and suggest that they use it, if appropriate.  However, we are open to suggestions about improving the guidance and will keep it under review.  The scheme itself is currently in beta, which means that users are encouraged to provide feedback and suggestions for improvement.  We have already made a number of improvements through this feedback and have more planned."


Anonymous said...

You say that the Museum of the Order of St John spent £491 on its application. Does this include the cost of conducting a diligent search? And does it make sense to spend any money on material that is not being commercially exploited?

Andy said...

Anon @12.20.
The figure of £491 is just for the application and licence fees. I don't know the cost of the diligent search. You would have to ask the two museums whether the costs are justified, but I would suggest that they may have more altruistic motives for wanting to make these works available. In the case of the Museum of the Order of St John, I suspect these items might never have become available to the public without this pro-active stance. Arguably the Leeds Museum and Galleries only had to wait until 2023 and Charles Ginner's works would have come into the public domain anyway.

john r walker said...

Are there figures for how much has been paid by applicants,in fees to the costs of managing the scheme?

Andy said...

Hi John, The figure of £491 paid by the Museum of the Order of St John for their 175 applications, represents the money paid in to the IPO. I understand that £470 of that was for the application fees, and the remaining £21 was for the licence fees. As you may be aware the IPO operate a sliding scale which means that it is cheaper to submit up to 30 works in single application, as compared to 30 separate applications. The fees scale also varies depending on the intended usage stated by the applicant.

john r walker said...

Andy thanks
I now realize that I should have asked: how much has been paid to the IPOs costs,by all the applicants combined.

Paul Ellis said...

I suspect these items might never have become available to the public without this pro-active stance.

Unfortunately the author of this piece, it seems along with most of the Cultural Heritage Sector, has confused ‘making available to the public’ with ‘publication’. According to the IPO, 'In the UK, public exhibition is not an act restricted by copyright. This means that it is not an infringement of copyright to put a literary, dramatic, musical or artistic work on public display (for example, in a display cabinet in a museum or gallery).'


[ - Not that this prevents the IPO from selling you an orphan works licence to do just that, so perhaps they need to get their house in order.]

Museums and galleries have always legally been entitled to place orphan works in their collection on public display; these works have never been ‘locked away’, as so many insist. What they have been unable to do is copy and publish these works without the authors’ permission. Digitising an orphan work and publishing it on a website is clearly an act of publication which fails the Three-Step Test.

Andy said...

Thanks for the comment, Paul.
Happily I am aware of the difference between making an original work available to the public in a display in a museum or gallery, and publishing the work which involves copying it.
The reason I made the remark that without the orphan work licensing scheme, these particular works "might never have become available to the public" was largely because the planned display in the museum is to be interactive, as is the online version of the Nisbet scrapbook. Neither of these facilities would have been possible under the 'making available' provision to which you allude. If you think about it, a book in a glass case, open at one particular page, is not the best way to make it available to the public, and so I believe that what the Museum of the Order of St John are doing in seeking a licence and digitizing the scrapbook, serves a wider public good.