WHO OWNS
THE
ORPHANS?
professor uma suthersanen
centre for commercial law studies
queen mary, University of london
“If we do not reform our European
copyright rules on orphan works and
libraries swiftly, digitisation and the
development of attractive content
offers will not take place in Europe,
but on the other side of the Atlantic.”
Viviane Reding, Commissioner for Information Society and Media
‘Clarification
and transparency in the copyright status of a
work is an essential element in a number of areas
including the European Digital Library Initiative. In some
cases rightholders cannot be identified or located; as a
result, works can be classified as “orphan”.
Comprehensive, large-scale digitisation and online
accessibility, as well as other uses, are hampered by this
phenomenon. As a result, libraries, museums, archives
and other non-profit institutions may be prevented from
fully exploiting the benefits of information technology to
carry out their preservation and dissemination mandate.’
Report on Digital Preservation, Orphan Works, and Out-of-Print Works: Selected Implementation Issues:
Origins of Orphans
Inadequate identifying information about ownership, co-authorship or
physical location
Inadequate information about copyright ownership due to a change of
ownership or to a change in the circumstances of the owner,
Copyright owner does not realise that they benefit from copyright
ownership
Copyright owner has died and inadequate information on new
ownership
Difficulties researching copyright information, especially grey material
Where the copyright owner is a business, the business ceased to exist
and it is impossible to find out what happened to the copyright which
was one of the business assets
The work was never meant to be commercially exploited in the first
place
Length of duration of copyright in published and unpublished works
European Commission:
Legislative Initiative
Legislative initiative on "orphan" works for
digital libraries
Expected date of adoption of the initiative
(month/year): November 2010
European Commission:
Legislative Initiative
Europeana - a pan-European digital library and
archive, in order to make Europe's cultural
heritage available online
Majority of Member States have not yet developed
a regulatory approach with respect to orphan
works
Initiative seeks to, by means of binding legislation,
introduce an obligation on Member States to
identify orphan works published in their territories
and to establish mechanisms for their online
display.
The entire system would then allow seamless EU
UK Report
In from the Cold: An assessment of the
scope of ‘Orphan Works’ and its impact on
the delivery of services to the public
Report prepared by JISC for the Strategic
Content Alliance Collections Trust - a
collaboration funded by public sector
organizations comprising of JISC, British
Library , BBC, Becta, Museums, Libraries
and Archives Council
UK Report: Extent of
Problem
Estimates vary as
there is no agreed definition of ‘orphan works’
dependent on the sector and nature of work
UK’s public sector - measured at 5% to 10% on average
Archives and libraries sector - reaching up to 50%
BBC estimate - 1m hours of broadcast footage classified as ‘orphans’
British Library estimate - 40% of all works are ‘orphans’
Total number in UK survey - excess of 13 million orphans
Individual estimates within single organisations - hold in excess of 7.5
million orphans
Total sample of 503 organisations could represent - in excess of 50
million orphans
UK Report: Types of
Orphans
Works with little commercial value, but high academic and cultural
significance
User generated content, works by amateur or local artists and works by
artists using aliases
Documentary
Photographs
Sound recordings
Letters, diaries and unpublished text based works
Amateur‐made films
UK Report:Orphan
impact assessment
Rich primary resources being ‘warehoused’ at public
expense
Estimates of approximately 5 million works being locked
from access
No delivery of works online to the public without additional
costs and/or risks being imposed on the public purse.
British Library Sound Archive - total of 150 freelance and
152 staff hours (302 hours) resulted in eight permissions
being received
6.5 million days to clear all orphan works for works in
survey (approx. 18 000 years).
UK Report:
Recommendations I
What did surveyed participants want?
Checklist to demonstrate due diligence (50-60%)
Establishment of a national copyright database; setting up of a
central agency to administer rights; common transparent system
for recording and granting permissions in real-time and at low
cost
Licensing scheme (20- 30%)
Larger organisations more likely to buy into a licensing scheme
Comments as to the complex licensing schemes already
available were restrictive
Schemes that cover Orphan Works would help those for whom
the issue is time-consuming or risky, inhibiting development of
commercial strands, or organisations and projects for whom it is
impractical to carry out due diligence searches or which are large
enough for an extra fee to be incidental.
UK Report:
Recommendations II
Legislative change: copyright exceptions (60-70%)
Legislative change providing legal certainty (50-60%)
Total amnesty on the use of Orphan Works
Remove Orphan Works from the copyright act
Copyright exception - distinction between works of high
commercial value and of those of low commercial but high
academic value
Copyright exception - extend ‘educational purposes’ to cover
organisations across the public sector involved in educational
activities, and to cover public access to materials (as public
education)
Include details of permitted use if every effort has been made to
trace the creators and this can be proved
UK Report:
Final
“The scale and impact of Orphan Works across the
public sector confirms that the presence of Orphan
Works is in essence locking up culture and other
public sector content and preventing organisations
from serving the public interest. ... Without any
kind of UK or European Union-wide legal
certainty, there will remain a major risk for all
users of Orphan Works....... Whether the answer is
a UK or an international one, involving a change in
practice and interpretation and/or a change in
legislation, this is clearly a matter of urgency.
Without these legal safeguards, the contribution of
public sector content to a global digital landscape
will continue to be severely curtailed and the levels
of public resources to manage copyright will be
unacceptable.”
European Union:
Orphan Impact
Assessment
Assessment of the Orphan Works Issue
and Costs for Rights
European Commission DG Information
Society and Media Unit E4 Access to
Information May 2010
EU:Extent of ProblemI
Conservative estimate as a percentage of European in- copyright
books - 3 million orphans (13 % of the total number of in-copyright
books)
Older books - higher percentage
European film archives - 129 000 film works are official orphans;
225 000 film works are unofficial orphans
95 % of British newspapers from before 1912 are orphans.
90% of British photographs in museums (approx. 17 million
photographs) are orphans
95% of images in the UK National Archives between 1883
and1912 were untraceable (researchers are given these images
subject to notice that researchers themselves responsible for
obtaining permission from the right holders)
EU:Extent of Problem II
Danish National Library - 160 000 works from
the period 1880-1930 with uncertain orphan
status.
US - For 1872-1957 it is estimated that only
2% of all works protected by copyright are
commercially available
US - in 1930, over 10.000 books were
published in the USA, but in 2001 all but 174
were out of print
Source: The Economic Structure of Intellectual property Law, Posner R. and Landes W. 2003
EU:Extent of Problem
III
Bodleian Library - 4,756,746 books were published in the UK from 1900 - present
Assumption: total of UK orphan books = the total of UK books published in 1950 or
earlier which are still in copyright and whose authors are dead
Assumption: authors of works are alive when the work is published, and that they will
die at a rate of 2% a year over the subsequent 50 year period
Estimate rate of orphans in UK : increase gradually and be around 627 688 books in
the UK alone in 2009. This is about 13% of the total (roughly 4,756,746) of UK books
in copyright.
Estimate no. of orphans in 27 EU Member States: 4 million.
Assumption: Publishing rate of Germany, Spain, France and Italy = UK; Publishing
rate of Austria, Ireland, The Netherlands, Poland, Portugal and Denmark, Finland and
Sweden put together = 1/5 UK; Publishing rate of rest of the Member States = 1/10
UK. To avoid any over-estimation the number may be reduced to 3 million books.
Bearing in mind that all EU countries have the same term of copyright, the proportion
of orphans could be assumed to be the same for Europe-27, i.e. 13 % in lack of better
evidence.
Source: Society of College, National and University Libraries, SCONUL, January 2010
EU:Extent of Problem
IV
In-copyright books between 1900 and
1939 : 95 % of rightsholders untraceable
In-copyright books between 1940 and
1988: 75 % were untraceable
In-copyright authors - 100% of the
contacted right holders granted permission
to use the work, without remuneration
EU: Origin of Orphans
2 types of orphan works
Works whose right holders are unidentified or unclear
Presumed that the work is protected, as no death date can be established
Holder of copyright remains unclear in situations where the original right holder (author) is
identified but there is uncertainty about the current right holder of the work
Likely that ‘old’ publishing contracts have never covered the digital use of the work
Provisions about the term of protection for older works make the establishing of copyright
protection exceptionally difficult - for example the revisionary copyright provisions of the 1911
Copyright Act have caused "orphans"
UK law contains also a specific provision giving unpublished materials copyright until 2039
Works whose right holders cannot be traced or located
Information about their whereabouts is not available or has become outdated. Possibly multiple
legal heirs.
When the rights have been assigned to a company, the company might have gone out of
business, or gone bankrupt without clear assignment of assets.
EU:Impact assessment:
Transaction Costs I
High transaction costs
Rights clearance not part of the normal activities of publicly funded institutions
(except public service broadcasting companies
Costs for published materials reduced if rights holder information is available
within registries of collecting societies and publishers or databases kept by
libraries.
Few collecting societies grant licences for cultural institutional use - only on the
music or visual sectors
Some RROs developing rights clearance services for distance education etc.
and library uses.
Registries of collecting societies do not usually include right holder information
for grey literature - i.e. materials published by non-professional publishers
(corporate or governmental publications) or unpublished materials (amateur
photographs, music or video content created by non-professionals).
EU:Impact assessment:
Transaction Costs II
National Library of the Netherlands - a title by title
search is not feasible for large scale digitisation
projects which normally include thousands of right
holders to possibly hundreds of thousands works.
Library states that although it has concluded
collective agreements with right holders, the use of
potential orphan works by the library remains
infringing, because this collective solution lacks a
legal basis.
Library advocates that the EU should introduce a
Europe-wide, mandatory legal solution for both
orphan works and mass-scale digitisation, which
does not require a diligent search on a per-work
basis.
EU:Impact assessment:
Transaction Costs III
Austria: 200 000 digitised German
dissertations from 1925 – 1988 in the
collections of a university library cannot be
made accessible online because
transaction cost would be 20-50 times
higher than cost of digitisation
UK: Wellcome Trust project digitising
posters from the 1980's spent £ 70 000 in
transaction costs for clearing the rights for
just 1 400 posters
European Union:
Solutions
Denmark: strengthened their extended
collective licences to cover orphan works
Hungary: A centrally-granted, nonexclusive licence solution
EU: ARROW project (in conjunction with
European Digital Libraries project) is
working on developing databases on right
holders of books.
European Union: i2010
Report
Final Report on Digital
Preservation, Orphan Works, and
Out-of-Print Works
i2010: Digital Libraries High Level
Expert Group – Copyright Subgroup
European Union: i2010
Core principles:
Report
Diligent search criteria that a user
needs to fulfil prior to the use of the
work
Databases of orphan works to
facilitate users in their search, which is
needed irrespective of any legislative
solution
A rights clearance procedure and
Rights Clearance Centre to grant
licences
European Commission:
Legislative Initiative
The 6 Options
Option 1
Do nothing
Option 2
Statutory Exception
Clarify legal status of orphan
works
Exception allowing online
display of orphans in EU
Compensation if owner
appear
Options 3, 4 and 5
3 Versions of Copyright Licences
Extended collective digital
licensing
Specific licence for digital display
of orphan works
Centrally granted State licence
for digital display of orphan works
Option 6
System of Mutual
Recognition
AHRC Project: Who
owns the orphans?
Traditional and Digital Property in Visual
Art
Who owns the
orphans?
the research team
Grant Holder and Principal Investigator - Professor Uma
Suthersanen, Queen Mary, University of London
AHRC Fellow - Dr. Maria Mercedes Frabboni, Queen
Mary, University of London
Consultant - Dr. Daphne Zografos, IQsensato, Geneva