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UK Moves to Solve Orphan Works Problem by Adopting a Compulsory License System

Copyright may be one of the underpinnings of the publishing industry but it has clay feet: orphan works. It’s not uncommon for a really old work, or old personal documents, to sit molding in an archive because the copyright holder either can’t be identified or can’t be reached.

To solve that problem, the UK is implementing a license scheme which is expected to make up to 91 million works available for public use, including cultural artifacts which literally had no owner:

Another beneficiary is The Museum of the Mind, which holds a wide range of culturally valuable works created by people who worked and were treated at the Bethlem Royal Hospital, which was founded in 1247 and was the first institution in the UK to specialise in the care of the mentally ill.

Many of the works they hold were collected from patients and staff by psychiatrists interested in the therapeutic value of creative expression and the rights then transferred to the museum.

The Imperial War Museum is among an alliance of UK museums, libraries and other bodies backing the Free Our History campaign, which is seeking to allow original letters, diaries and other important historical works to be displayed for the nation during the First World War Centenary.

That last is rather interesting from a US viewpoint; under US law those antique personal documents would have no copyright until they were published for the first time. I know of a very similar situation where a US university is digitizing and publishing personal journals from the 1800s. The journals had been either left to the school or collected by a historian, and now the school is filing for the copyright. (It’s not a perfect parallel, I know.)

The UK is making the works available in compliance with the EU’s Orphan Works Directive under what would best be described as a compulsory license. According to IPKat:

These works are covered by copyright, but rights holders cannot be found by those who need to seek permission to reproduce them. Under the new scheme, a licence can be granted by the Intellectual Property Office [IPO] 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

This is the UK’s answer to the European Union’s patchwork solution to the concatenation of current copyright law’s problems: automatic registration and a copyright term of death plus 70 years.

While one could argue that automatically conferring a copyright on every single possible work helps creators, a copyright term of death plus 70 years helps no one – aside from a handful of corporations, and possibly a cryogenically suspended Walt Disney.

This has kept valuable historical documents hidden away, including:

The National Records of Scotland have a collection of over 150,000 maps and plans, most of which are unpublished. The archive sometimes knows the name of the authors but often does not know when they died or who their beneficiaries might be.

The collection includes a large number of plans relating to Victorian engineering projects, such as the Forth Bridge, which were unavailable for reuse as they couldn’t be copied.

Don’t get me wrong, I am pleased that these documents are finally seeing the light of day, but I also think that the orphan works law is a solution which is just as flawed as the problem it is trying to solve.

The orphan works directive itself creates a problem, namely that if and when the copyright holder is identified that individual will find that his IP has been infringed.

I think a better idea would be to fix copyright law by removing the compulsory registration or shorten the term, thus eliminating the problem in the future.

A radical idea, I know, but when you have century old documents which can’t be used because of copyright issues, it’s a sign that there is an inherent flaw in the existing laws.

The Independent

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Nate Hoffelder October 30, 2014 um 10:57 pm

And it seems there is an angle to this story which I missed and will have to cover in a follow up:

The UK stance on orphan works has long raised hackles among rights owners and creators, especially photographers both professional and amateur. Most current “orphan works” are not historical images locked away in vaults, or dusty old books whose authors cannot be located: but rather digital photos with the identifying metadata purposely stripped off.

Large users of these so-called “orphans” such as Google Images, the BBC or Sky remove this metadata on an industrial scale. And, because most of these images have some market value, photographers have argued that the opportunity to use them without paying has benefited huge corporate users at the expense of creators.

The Rodent October 31, 2014 um 11:30 am

>> personal journals from the 1800s … and now the school is filing for the copyright …

If they’re actually filing for copyright on works that old, they’re doing some evil.

Nate Hoffelder October 31, 2014 um 12:06 pm

Filing for the copyright was evil, yes, but at least they had the option. In the UK there are historical documents from that era which are locked up because of copyright issues. That is worse, IMO.

ecw0647 October 31, 2014 um 7:54 pm

Finding out who actually owns the copyright can often be a daunting task, even for current items. At my college we needed to make copies of a text that had gone out-of-print for a course. We wanted to get permission and were quite willing to pay a license fee. We contacted the publisher who said they did not own the rights and referred us to the author’s agent who could not find any information on the rights ownership and they referred us to someone else. To make a long story shorter, after a year of trying to track down permission, the original publisher we had contacted just said go ahead and make 200 copies and it will cost you X number of dollars per copy. Needless to say, when we needed more copies we just gave up, and reorganized the course.

Nate Hoffelder October 31, 2014 um 8:04 pm

I know what you mean. I’ve never had to find the copyright holder, but I did use to have to search for a work’s status in order to see if it out of copyright. That was frequently daunting and sometimes impossible, so I can only imagine what trying to find the owner must have been like.

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