Monday 27 April 2015

Who has adopted the Orphans?

Readers will probably be familiar with the background to the Orphan Works debate, (if not then see here, here, here and here) which arguably first entered the public arena with the Gowers Review (pdf) and then chugged along, via the Hargreaves Review, the Digital Economy Bill until finally seeing some legislative resolution in the form of Section 77 of the Enterprise and Regulatory Reform Act 2013, and The Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014. The photographers' lobby group Stop43 marked this milestone with the website headline "You think you own your own photographs? NOT FOR LONG."

So as we near the end of the first six months of the Orphan Works Register, are there any signs that Stop43 were right to be concerned?

As at today, a total of 263 works have been subject to applications for a licence, with 220 licences having been granted. The vast majority of applications (215) are for still images, of which 202 concern photographs and the remainder are for paintings. The next highest area of interest is Written Works, with 34 applications, and 19 licences granted. Fourteen sound recordings have been subject to applications, but so far no licences have been granted in the category. Trailing way behind in popularity are Scripts and Choreographic works (1 application awaiting further information), Musical notation (1 licence granted) and Moving Images (no applications).

As might be expected, a very high proportion of all applications is for material connected to the First World War. The most prodigious applicant has been the Museum of the Order of St John accounting for 175 of the still image applications, all of which have been granted licences. These images are photographs typically of people or scenes involving the work of the St John Ambulance in WW1. One assumes that these were images in the archive of the museum, which are genuine orphans, and so, perhaps, a good example of the altruistic motives which have energised the push for orphan works to be made available to a wider audience. None of the other 14 applications for photographs involve anything which could be considered modern.

Scattered across both the written works and still image categories is a group of applications which centre on ephemera concerning the poet Rupert Brooke. It is tempting to surmise that once again the First World War may be a major factor behind these applications, which were submitted by Brooke's old university, King's College, Cambridge.

Even the Sound Recording applications seem fairly innocuous, although some are for comparatively recent works, such as the one described as "'She's a playgirl' recorded by Clifton Dyson for Q.S records in 1983."

The IPO's Orphan Work Register web page is still in beta format and so a little clunky when trying to do searches. That said, clicking on the title or description of a work takes you into the full registration details for each application. This makes searching the current database relatively manageable, but it will become less and less easy as the overall number of applications on the register increases.

I think it's fair to say that based on the results of the first six months, the applications submitted so far don't exhibit evidence of the abuses which were feared. The majority appear to be requests based on enhancing our cultural heritage rather than outright commercial exploitation. However as the orphan work licensing system becomes better known, that could well change.

Look out for a follow up piece here on orphan works licensing, based on the experience of a real life applicant, in a couple of weeks time. 


Alan Gallery said...

I would say not so much adopted but used and possibly abused. The OW scheme does not and cannot address the fundamental right of an author to say no to a particular use or complain about misuse. Once reproduced on the internet there is no provision to prevent a work becoming reproduced without a OW licence and there is no one to defend the work against theft and misuse. The IPO do not even appear to audit the quality of Diligent Searches as I have it that it is the responsibility of the applicant. Clearly there is a need to publish details of the search along with the application.

I imagine Stop43 are still concerned, as are many creative workers. But the efforts of Stop43 and others did ensure that the OW scheme was not the thieves’ charter it could have been.

Anonymous said...

Thanks for your input Alan. Surely the orphan works scheme provides no less protection for the author than already exists on the internet.
To take the example of photographs, an author today could have his work taken at any time and reproduced without permission. If the photographer is diligent and finds the unauthorised reproduction he can start a long and often fruitless quest to get it removed and to receive recompense.
Equally, if a photographer finds one of his works being used under an orphan works licence, after he has notified the IPO he can get the fees which were paid by the licensee and the work will be removed from the register. And if he can show that the licensee lied in making his application (because it was perfectly possible to find the photographer by a reasonable search) then under Reg 4(8) the licensee becomes liable for infringement just as if he had taken the image from the internet without going through the licensing system.
As for the IPO's audit of the diligent search process, I think it's too early to judge. However Regulation 4(9) does place an obligation upon the IPO staff to satisfy themselves that a diligent search has been done.
I'm not defending the system, and like Stop43, I believe there is the potential for modern photographers to suffer adversely. I would hope that the IPO staff would scrutinise applications concerning modern photography with a great deal of scepticism. But at least the IPO-run system makes the process more visible, and identifies the applicants in a way that the normal wild-west ethics of the internet can never do.