Copyright Holders Will Define Details Of UK's Orphan Works Bill, But Not The Public

from the same-old-same-old dept

The UK's new orphan works legislation allows works to be classed as orphans only after a "diligent search" has been conducted to find the owner. The fear expressed by some is that this "diligent" search won't be very diligent, allowing publishers to use materials that aren't orphans. That's actually wrong for a number of reasons, as Techdirt explained recently, but the continuing furor from photographers in particular has been such that the UK's Intellectual Property Office (IPO) felt compelled to issue a document entitled "The Enterprise and Regulatory Reform Act 2013 –Your photos and you" (pdf) explaining how the system would work, and why the fears were unjustified.

However, that document still does not answer the central question of what "diligent" will mean. A post on Out-Law.com provides some information about how this will be addressed:

"The 'diligent search' requirement will be defined through a working group so that it can reflect current best practice across all sectors," a spokesperson for the IPO told Out-Law.com. "This will make sure that any requirements are practical and manageable. The working group will include representation from creators, including the photography sectors, and users such as museums and archives."
Reading that made me wonder who exactly was on this working group, so I contacted the IPO's press office asking for details. Here's the list of organizations they kindly sent me:
Society of London Theatre and Theatrical Management Association
BBC Publishers Content Forum
JISC
National Museum Directors' Council (NMDC)
Copyright Licensing Agency
Musicians' Union
Creators Rights Alliance
British Association of Picture Libraries & Archives
British Equity Collecting Society
Focal
Authors Licensing & Collecting Society
The National Archives
Stop 43
Libraries and Archives Copyright Alliance
The Association of Photographers
British Screen Advisory Council
Publishers Licensing Society
The Association of Illustrators
Society of Authors
Directors UK
Producers Alliance for Cinema & Television
UK Music
Association of Authors Agents
There are two things that struck me about that list. One is the appearance of Stop 43, probably the most vociferous of the photographer groups that have been complaining about the new orphan works law. Let's hope that its presence here, and thus its ability to contribute to the definition of "diligent", means that it drops the rhetoric about how the UK government has "reversed the normal workings of copyright," when that's simply not the case.

The other thing is that in contrast to the two groups representing photographers, there is not a single advocate for the somewhat more populous general public. Of course, that's absolutely par for the course: the public is routinely overlooked whenever it comes to asking "stakeholders" what they think about proposed changes to copyright. The UK's welcome move to liberate hostage works at last would have been the perfect opportunity to break yet more new ground by engaging directly with groups representing the 60 million people whose views are never properly considered. Sadly, that seems not to be happening.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: copyright, diligent search, orphan works, photographers, public, public interest, uk


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  1. icon
    nospacesorspecialcharacters (profile), 15 May 2013 @ 1:59am

    Using a screwdriver to bang in a nail

    I think the core failure of this from the outset is not having representation for the public. As history has shown time and again, there's nothing to stop this select group from overreaching their purpose and becoming sole arbitrator of what is or isn't a copyrighted work.

    The big publishers will make sure they can grab as much orphan works as possible, whilst diligently protecting their own (remixed from orphan) works - it's like putting the fox in charge of the chickens!

    A better way of doing this would have been to have an open registry where anyone who finds an orphan work and wants to use it must register publicly and it should be available for, say 30 days, for someone to claim ownership. That way any member of the public can be involved.

    There should also be a requirement for all publishers to provide a source (author/orphan), by law, on any work they use - which I gather is the main fear for photographers.

    Ultimately, though, it would be easier if we just go back to registration for copyrights. In a world where millions of photos exist of the Eiffel Tower, how could anyone claim (prove) their copyright on a specific photo (unless they put something unique in it).

    Technology has provided the means for making your work very easy to replicate, but it has also taken an audience that was once local and made it global. It has also made your work very easy to produce in the first place.

    In the 1983 you had to pay upfront expense for a gallery, rely on advertising and local word of mouth; maybe have 1 or 2 people forge your work and 10,000 people may buy it.

    In 2013 you zero costs for a gallery, can be seen worldwide, and 1 or 2 million people may copy your work but 100,000 people may buy it - there is no loss, just increase in piracy from people who would never have seen or bought anyway.

    Should copyright even exist on things that can be created, copied and distributed worldwide within minutes?

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