Tuesday 7 May 2013

Orphans: Much ado about … what?

Many of you will know Martin Kretschmer, Director of CREATe and Professor of Intellectual Property Law at the University of Glasgow, and Martin has just published this post on the CREATe blog and I am delighted to say has agreed that we can re-blog his thoughts:

Much ado, even an air of conspiracy, surrounds the passing of the Enterprise and Regulatory Reform Act (EERA) on 25 April. The main focus has been on the Copyright Provisions in Part VI (“Miscellaneous and general“) that will insert a new section 116A into the Copyright, Design and Patent Act 1988, entitled “Orphan works licensing and extended collective licensing”. 

The section will enable the government to set up (through the statutory instrument of regulations) a body with the authority to license so-called Orphan works, i.e. those works whose owner of copyright “has not been found after a diligent search made in accordance with the regulations” (s. 116A(3)). 

Campaigning photographers (http://www.stop43.org.uk/) have argued that identifying metadata are routinely removed before images are published online, and a misinformed section of the blogsphere has trumpeted a message of expropriation. Eleonora Rosati of the IP Kat and Ben Challis of the 1709 Blog [see our previous post here] offer a nice range of quotes, including Dominic Young’s assertion that the UK had “abolished copyright”, and the Telegraph’s Instagram Act headline: “social media users lose ownership of their own photos”. 

Paul Briden’s KnowYourMobile blog is another typical example: 

“Within the new legislation is a change to UK copyright law which will effectively allow companies to use images which don’t include information identifying the owner for commercial gain. In other words, your holiday snap taken on your iPhone which you shared to your public-facing Facebook page, could end up in someone’s glossy brochure and you wouldn’t even get a penny, let alone a note asking if it’s ok. 

There’s also no section of the new Act which forbids sub-licensing practices, ie: someone can get your photo and sell it to someone else with little risk of repercussions. This is a very serious problem and I can see it only getting worse. 

Interestingly, Instagram tried to enact this kind of commercial sharing approach to users’ content fairly recently but was (quite rightly) shouted down by angry consumers – and yet here it’s happening on a broader scale, by a national government and quietly through the back door.”  

There are many misunderstandings in these short paragraphs. Here are three reasons why social media services will not attempt to rely on the Orphans provisions of the ERR Act for the use of digital images. 

First, users would have to evidence diligent search (which photographers can pre-empt by registering their images on any public database). 

Secondly, users will have to obtain a formal licence from a public body. 

Thirdly, user will have to pay a market price for commercial use (and deposit that fee so that it could be claimed by a reappearing author). 

Why would a social media service want to jump through these hoops? 

Prior to the ERR Act, none of these processes were formalised. The current media practice to strip images of meta data, and even use such images in prominent positions (e.g. on newspaper covers, as is common with Twitter photographs after accidents and atrocities) will now attract greater scrutiny. While these practices may be undesirable (and indeed constitute an infringement under copyright law, both before and after the ERR Act), this a matter for legal remedies (such as the damages available for stripping metadata and indeed for unlawful use). This is where the photographers’ scrutiny should be. 

It is misleading to claim that the ERR Act would permit digital images to be used without permission and compensation for the rights holder, and it is surprising that the claim has gained such currency. 

The Orphan works provisions of the ERR Act are really designed for the large body of copyright works that lie barren because of the long copyright term. For example, Mulligan and Schultz found that only 2.3% of in-copyright books and 6.8% of in-copyright films released pre-1946 remained commercially available in 2002: Mulligan, D.K. & Schultz, J.M., ‘Neglecting the National Memory: How Copyright Term Extensions Compromise the Development of Digital Archives’, 4(2) Journal of Appellate Practice & Process 451 (2002). 

Archives currently run considerable risks making their collections available online. While the intentions of the ERR Act are thus well meaning, and entirely consistent with the overall purpose of copyright law (to release creativity), the details of implementation will matter greatly. I have to declare an interest here, as I am co-author of a study commissioned by the UK IPO which aims to offer a clearer understanding of how Orphan works are regulated and priced in other jurisdictions, and how a pricing system could be structured to ensure that “parents” are fairly remunerated if they re-appear, and users are incentivised to access and exploit registered orphan works. 

Our study (with colleagues Favale, Homberg, Mendis and Secchi) simulated the clearance of Orphan works in several jurisdictions which have an operational system for licensing Orphan works (including Canada, Denmark, Hungary, Japan and India). Another example of the bizarre reception of the ERR Act is the Register’s claim that “[f]or the first time anywhere in the world, the Act will permit the widespread commercial exploitation of unidentified work“. 

Simply not true. Our study found that in most of these systems in particular non-profit, non-commercial uses do not happen in the way anticipated, i.e. Orphan works are not released, or reunited with their parents, as the legislators claim. (I’ll write another blog once we can reveal the data with the publication of the full study.) 

Lastly, I also should put on record that I consider the legislative process of the ERR Act to be problematic (http://www.create.ac.uk/blog/2013/03/17/copyright-in-artistic-designs/). The first version of the ERR Bill (as introduced in May 2012) did not contain any Orphan works provisions at all, and I still do not think the appropriate scope of copyright exceptions should be a matter for secondary legislation. 

Martin's original blog can be found here  http://www.create.ac.uk/blog/2013/05/06/orphans-much-ado-about-what/

Image: publicity shot for Orphan, the 2009 American psychological horror film directed by Jaume Collet-Serra.  (from http://en.wikipedia.org/wiki/Orphan_(film) ).


Anonymous said...

Is there a way we can put pressure on social media companies NOT to strip the copyright (and other) metadata (exif and IPTC) from images? Although registering images and watermarks are available, both have disadvantages. I can get my copyright information added to the IPTC metadata automatically by my tool of choice (Aperture, but others do this as well), but some or all of it gets stripped. See the Metadata Manifesto for more information. It wouldn't be hard for these companies to get this right; I'm sure they are nt stripping it for nefarious reasons! Chris Rusbridge

Paul Ellis said...

'It is misleading to claim that the ERR Act would permit digital images to be used without permission and compensation for the rights holder, and it is surprising that the claim has gained such currency.'

If a work is exploited as an orphan work, and therefore without the knowledge, permission of and payment to its rights owner (because its rights owner cannot be found and contacted), or that work is exploited under ECL again without the knowledge, permission of and payment to its rights owner (because its rights owner is not a member of the ECL licensing body and has not opted out), it is absolutely true to claim that the ERR Act would permit digital images to be used without permission and compensation for the rights holder. If it did not, it would not permit the licensing of orphan works, or ECL, both of which are designed and intended to legalise the exploitation of works without their owners' knowledge, permission, and payment to them.

I am surprised that Mr. Kretschmer should make such a statement.

Andy J said...

Thanks, Martin, for redressing the balance in this debate. I regret that Stop43 and others have resorted blatantly exaggerated and sometimes untrue statements which only undermine their basic, justified concern.
I assume this is intended as a pre-emptive strike before the consultation on secondary legislation begins, and aimed largely at getting the general public fired up, much as occurred with the Instagram issue, and to a lesser extent over the campaign to stop SOPA. That will be no bad thing if it encourages officials at the IPO to draft the secondary legislation with greater care to prevent exactly the kind of abuse of obviously modern images which so concerns Stop43 and photographers in general. But there is always a danger that crying wolf when it is based on so many demonstrable fallacies, could ultimately backfire and leave the campaigners discredited when the consultation gets properly under way.
It is rather a shame that the UK chose not to implement an amended version of the EU Orphan Work Directive instead of going down the ERRA route first. The margin of appreciation should have allowed us to include provision for collaboration between institutions and commercial companies - something the Directive on its own does not envisage - and thus greatly increase the chances of successful co-production ventures which really would benefit society. However the current rules requiring all institutions (using public funding) to pay the fees upfront, despite the likelihood that the money will lie inaccessible in escrow for many years, may make the whole process of large-scale digitisation of archives etc far less appealing to public bodies, and leave the field wide open to the likes of Google who have the money to invest.

john walker said...

"What the issue is here the proposal is so broad and clumsy (it was written by activists who don't really understand copyright, they're quite new to it, and not lawyers) it threatens primary licensing. The UK IPO had every opportunity to narrow the wording of OW/ECL so there would be no ambiguity and no threat to primary licensing at all. They declined the opportunities."
Andrew Orlowski

I think this sums it up, except from what we, in australia, have seen of the UKs quasi-official IP sector, hostility and threats to primary rights are not unintentional

Anonymous said...

"Our study found that in most of these systems in particular non-profit, non-commercial uses do not happen in the way anticipated"

That's because they have specific safeguards and a narrow scope - which the Government rejected.

Stop43 is correct, and Professor Kretschmer once again, misunderstands copyright. The U< legislation is a threat to primary licensing. Other Orphan Works provisions, and ECL schemes, are not.

Professor Kretschmer not only receives funding for CREATe directed by the IPO, he is well known as a campaigner against strong copyright. Perhaps the 1709 Blog can in future tag his contributions as "Propaganda".

- Everyman

john walker said...

n the 90s Shane Simpson,a very respected Australian copyright lawyer, on behalf of the Australian Federal Government in 1995, produced a major report on the copyright issues that were already emerging in the digital age.

This is from the section of his "Review of Australian Copyright Collecting Societies" dealing with then advocated statutory (compulsory) approaches to Copyright .

“The general attitude of WIPO to statutory licences is that they should be avoided wherever[voluntary] collective administration is feasible. In brief, it is considered that collective administration recognises that the individual copyright owner has the essential right to control usage - even though, for ease of administration, that individual may choose to license or assign that right to a representative organisation. When that right to control is taken away, all that one is left with is a ‘right to remuneration’, which is a quite different concept to the full rights of copyright”... and,... “not all rights of copyright benefit from collective administration. Many exercises of the rights are best dealt with on a one-by-one basis. The most simple indicator of this is that no group of Australian copyright owners has transferred all of their rights of copyright to a society for collective administration.”

In reference to the argument that individual primary rights are obsolete in this modern digital age and should be replaced by statutory rights, Shane Simpson further stated:

“It is very doubtful that this response is in the interest of the general community, although it is certainly in the commercial interest of certain commercial would-be, rights-user groups.”

Review of Australian Copyright Collecting Societies http://arts.gov.au/sites/default/files/pdfs/the-simpson-report-1995.pdf

Andy J said...

Just to bring this topic a bit more up to date, the IPO have issued a document (available in pdf here) which specifically addresses the concerns of photographers and the hyperbole which has recently been whipped up on the subject of orphan works and ECL.

john walker said...

The IPO 'calm down' doc does not impress. Some parts of the paper have an 'odd' feel- 'we are proposing ECL... but we do not expect it to happen... much.. because it is not an economically viable solution to the problem.

And do they really think that a requirement to register as 'not for collective management' will sneak past "No Formalities".

And do they really think that ECL will be viable in practice for genuine member societies why would a genuine member society take on extra costs for its members so as to license non member rights?