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
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."
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?
ReplyDeleteAnon @12.20.
ReplyDeleteThe 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.
Are there figures for how much has been paid by applicants,in fees to the costs of managing the scheme?
ReplyDeleteHi 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.
ReplyDeleteAndy thanks
ReplyDeleteI now realize that I should have asked: how much has been paid to the IPOs costs,by all the applicants combined.
I suspect these items might never have become available to the public without this pro-active stance.
ReplyDeleteUnfortunately 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).'
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/415698/Copyright_Notice_-_5_2015_exhibition_of_works.pdf
[ - 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.
Thanks for the comment, Paul.
ReplyDeleteHappily 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.