UK Launches Orphan Work Licensing Scheme, Misses Huge Opportunity To Make It Much Better

from the backroom-deals? dept

Orphan works, that huge collection of older creations which are out of circulation and have no obvious owners, are more rightly called "hostage works," since they remain uselessly locked away by rigid and outdated copyright laws. Even when the issue is recognized by society, lobbyists hold so much sway over the political process that legislation crafted to "solve" the orphan works problem is often worse than useless. So perhaps we should give at least one cheer for a new UK licensing scheme that will make access to large numbers of orphan works a little easier:
A new licensing scheme launched today (29 October 2014) could give wider access to at least 91 million culturally valuable creative works -- including diaries, photographs, oral history recordings and documentary films.
Here's how it will work:
Under the new scheme, a licence can be granted by the Intellectual Property Office so that these works can be reproduced on websites, in books and on TV without breaking the law, while protecting the rights of owners so they can be remunerated if they come forward.
That's all well and good as far as it goes, but it turns out that it could have been so much better if other key legislation had been passed first. The UK's Chartered Institute of Library and Information Professionals (CILIP) explains what the issue is (pdf):
Provisions in the [UK's] Enterprise and Regulatory Reform Act (ERRA) 2013 gave the government powers to amend the term of copyright for unpublished text based works, engravings and anonymous artistic works (except photographs) to life of the author plus 70 years [instead of until the fixed date of 2039, as at present.] This would bring the UK's copyright terms more closely into line with the harmonised regime across Europe, as intended by the Term Directive. However, implementation has been delayed. There is now a real danger that the issue of 2039 will be lost in parliamentary process before the [UK] General Election on 7th May 2015.
That's a problem, because it means all those ancient and unpublished works that would otherwise clearly be out of copyright, are now classed as orphan works until 2039; to use them under the UK's new orphan works licensing scheme then requires considerable effort:
In practical terms, because the duration of copyright in unpublished works was not dealt with at the same time that the Orphan Works solutions have been implemented, or at least implemented by March/April 2015, libraries, archives and museums will be expected to conduct due diligence searches (under the terms of the Exception) and also to pay an administration/licence fee (under the terms of the Orphan Works Licensing Scheme). This is a pointless waste of resources, for many of these works are within the scope of the reduction of term measures from 2039 in ERRA 2013.
That's part of why UK libraries, lead by CILIP, started the campaign Mike recently wrote about, with libraries displaying empty cases of orphan works that won't be released until 2039.

This will also have serious knock-on consequences across the whole of the EU and even beyond:
The 'Orphaned' unpublished works will remain in copyright in the UK and therefore Orphan, but be out of copyright in the rest of Europe. This will lead to the works that should be dealt with by the 2039 removal being wrongly registered as Orphans on the Office for Harmonisation in the Internal Market (OHIM) database, causing confusion across Europe and the world in relation to online projects such as Europeana, and more wasted public resources subsequently to put it right.
CILIP's fears seem justified. The UK government has just announced a consultation on "Reducing the duration of copyright in certain unpublished works." Since that closes on December 12, it is extremely unlikely that the necessary formalities will be completed to reduce the copyright term of unpublished works before the UK General Election next year. One issue that the consultation wants explored is "quantifiable costs to copyright owners." It's hard not to see that call, along with the unnecessary but critical delay to implementing the term reduction, as part of some backroom deal agreed with the publishing industry as the price of its acquiescence to the UK government's move to liberate millions of hostage works -- an idea that copyright maximalists hate.

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Filed Under: copyright, orphan works, uk

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  1. icon
    PaulT (profile), 5 Nov 2014 @ 2:55am

    In other words - instead of fixing the fundamental underlying problems that keep causing major issues, there's just a new licence fee to be paid (and presumably pocketed by some 3rd party if nobody ever comes forward to collect it).

    No solutions for the issues at hand, just another cost to be paid by people who are trying to obey the law...

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