Christian Engström, Pirat

5 december 2010

Mutual recognition of orphan works

Filed under: Copyright Reform,English,informationspolitik,Orphan Works — Christian Engström @ 14:36

Legislation is needed to solve the orphan works problem

An orphan work is a work that is still in copyright, but where the rights owner is not known or cannot be found. It can be a book, a song, a film, or a photo, or any other kind of work that falls under the copyright legislation.

Orphan works present a big problem for anybody who would want to use them. If you just go ahead without getting a permission, you run the risk that the rights holder suddenly turns up and sues you for a large amount. As we all know, courts can be quite prepared to set the damages for even minor copyright infringements to pretty astronomical figures. In many cases, this is simply not an acceptable risk.

But since there is no known rights holder that you can ask for a license, there is nothing you can do about it. No matter how valuable you think it would be to share that work with the world, there is no way to do it without breaking the law and exposing yourself to a great financial risk. The orphan works are effectively locked away by the copyright system.

This is not a small or marginal problem. A large part of our common cultural heritage from the 20th century falls into this category. About 75% of the books that Google want to digitize as part of their Google Books initiative are out of print, but still under copyright.

Even if it is theoretically possible to find the rights holders for many of these books by making a thorough investigation in each individual case, it simply becomes unfeasible when you want to do mass digitization.

And Google Books is not the only project to digitize works and make them available, even if it is the one that has attracted the most attention lately. There is an EU project called Europeana with a similar goal, as well as the open initiative Project Gutenberg. All of these are being held back by the problem of orphan (or semi-orphan) works.

Unless we do something, most of our common cultural heritage from the 20th century risks getting lost in a black hole before it becomes legal to save it for posterity. The Commission wants to address this problem, and solve it as quickly as possible. This a very good thing, and an initiative that we should support.

The cleanest solution would be to shorten the protection time from today’s life + 70 years to something that is more in line with the commercial realities of the cultural sector. Unfortunately, this is almost impossible to do quickly, since it would require re-negotiating the Berne Convention and other international treaties.

This means that in practice, there are essentially three possible solutions to the problem:

  1. Do nothing, and accept that most works from the 20th century cannot be digitized,
  2. Extended collective licensing, or
  3. Recognition of orphan works after a diligent search.

If we rule out option 1 as being unacceptable, the choice stands between extended collective licensing and a system based on the recognition of orphan works after a diligent serach.

Extended Collective Licensing

Extended collective licensing means that you legislate to the effect that for works where the rights holder cannot be found, management of the copyright is taken over by a collecting society, who will then be able to negotiate and collect money for the use of the work. I the (real) rights holder turns up at a later date, the collecting society will pay the money to him. If no rights holder turns up and makes the claim, the collecting society will keep the money and distribute it to its members.

In a completely unsurprising manner, this is the solution favored by the collecting societies. Since, after all, most of the rights holders will never appear, the collecting societies can look forward to quite a lot of money that will never be claimed by anybody.

The collecting societies have managed to convince the Nordic Public Service Broadcasters that collective licenses are the way forward. Public service broadcasters in Europe have a rich archive of 2.2 million television programmes and 10.5 million radio programmes from the early days of broadcasting to the present, the Nordic PSB wrote in a letter to members of the European Parliament in 2009.

Each production in the archives may involve up to a hundred rights holders. Finding and signing contracts with each one is difficult. Doing it for the whole archive is virtually impossible. Most of this common cultural heritage is currently locked away in the archives, because of the cost and difficulty involved in clearing the rights.

It is true that a system based on extended collective licensing would solve the problem for the public service broadcasters, and for other big commercial players. By paying money to the collecting societies, the broadcasters get protection from future lawsuits from the actual rights holders, in case any of them should appear. This would remove the legal uncertainty that is currently preventing the broadcasters from making their historic material available to the public.

But if collective licensing would solve the problem for public broadcasters and other big commercial players, it would would be very harmful to all forms of non-commercial culture production.

Take, for instance, a blogger who wants to put an old photograph taken by an amateur on his blog, to illustrate an article. If the rights owner is unknown (which is true for most older pictures that were created during the 20th century), it may technically be in breach of copyright to republish the photograph. In practice, however, the risk that a rights owner should appear and sue the blogger is almost negligible.

But if the collecting societies were given the rights to everything that has been created where the real rights holder is unknown, it would suddenly become highly risky to republish any picture unless you know exactly who the rights owner is and can prove it.

The collecting societies have a history of enforcing any rights they are given in a quite aggressive way, and there would be nothing to stop the from threatening anybody who republishes anything with a law suit unless they pay up.

The burden of proof would shift from the situation today, where anybody who wants to sue somebody for copyright infringement first has to prove that he actually owns the rights, to the reverse situation, where the collecting societies would have to prove nothing, since they would automatically own everything that cannot be shown to belong to a known rights holder.

A solution for orphan works based on collective licensing might be acceptable to big commercial players, but it would seriously harm the participation culture of the Web 2.0, as well as all other forms of non-commercial cultural production.

There is also the problem that the collecting societies still operate on a national level, so even if you pay one collecting society in the most relevant country, you still cannot distribute the material on the European level. This means that the objectives of Europe’s Digital Agenda cannot be fulfilled in this way.

The collecting societies have so far been unable to provide a one-stop-shop for the rights that they already have to works that are not orphan. This is a big problem in itself, and one of the major factors inhibiting the Internal Digital market. Locking up the orphan works in the same logjam would be a step in the wrong direction.

It is understandable that the collecting societies want to grab as many rights as they can, in order to collect as much money as possible for themselves and their members. That is, after all, their whole purpose.

But it is very hard to justify why they should be allowed to take over the rights to works that neither they nor any of their members have had any part in creating.

If the author of an orphan work would have wanted a collecting society to manage his rights, all he would have had to do was to register with the collecting society. The reason why he chose not to do this could be that he just did not bother, and never thought about it. But in many cases it is a deliberate decision by the author because he wanted the work to be freely available and part of our common cultural heritage.

To still confiscate those rights and give them to a collecting society anyway would not be respectful of the wish of the author, even if the collecting societies would like it they benefit from it.

Recognition of orphan works after diligent search

The alternative way to handle the orphan works is to introduce legislation that says that after a diligent search for the rights holder, a work can be declared orphan by some institution. This affords legal certainty to anybody who wants to make available or use a work where the rights holder can be found.

There are several different technical solutions to how to achieve this, that vary in their details. A statutory exception on the European level would be one possibility, but there are others as well. In order to be meaningful and fulfill the objectives of the Digital Agenda, the solution must be on the European level, so that the works can be disseminated at least throughout the internal market.

The European Commission is about to present a proposal on orphan works in the print sector. It will be based on rules for mutual recognition of orphan status by the Member States.

Once a diligent search has been carried out in the country where the work was first published, it shall be deemed orphan within all of Europe if no rights holder was found in the diligent search. The searches are to be carried out by public libraries and similar institutions, and saved as documentation of the orphan status. This provides legal certainty.

Each Member State will be required to set up a system where they specify a number of publicly available databases that should be searched before a work published in that country can be given orphan status.

This is a good model, so it is a proposal we should support. In order to be as useful as possible, it would be desirable to have as many different kinds of works included in the original proposal, preferably all.

For books and printed materials, the rules should be designed so that all players who have so far shown an interest in digitizing the material, are allowed to contribute to the effort. This would include not only public libraries and institutions, but also non-commercial volunteer projects like Project Gutenberg, and commercial players such as Google. Since public libraries have limited resources, the risk is that digitization of the European cultural heritage will take a very long time if they are the only ones allowed to contribute.

When designing the rules for commercial players to contribute, it is important to make sure that no new rights should be created by the act of digitizing the material, in order to avoid the risk of a private monopoly being created.

It is also important that the procedures prescribed by the Member States for doing the diligent search are not to onerous on the institution that wants to establish the orphan status of a work. When doing mass digitization today, the rights clearance is often more expensive than the actual digitization.

Depending on the definition of “orphan works” and depending on the practical meaning of “diligent search”, the percentage of expected orphan works among in-copyright works and the costs to prove that they really are orphan works will vary greatly, the head of the German National Library points out.

A solution like this is what that the public libraries prefer. It would provide legal certainty for digitization projects, and would solve the orphan works problem for libraries like Europeana.

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17 kommentarer

  1. Isn’t the cost and time for a diligent search model a substantial drawback? Whereas extended collective licensing may give a small cost for every use, but won’t give any extra cost for keeping up the system of diligent search, and above all, won’t keep the user waiting for the process to give results.

    Kommentar av Sophie — 5 december 2010 @ 15:14

  2. […] This post was mentioned on Twitter by Piratpartiet Live! and lillebrorsan, TwelvE. TwelvE said: Christian Engström: Mutual recognition of orphan works: Legislation is needed to solve the orphan works problem … http://bit.ly/ekdsWJ […]

    Pingback av Tweets that mention Mutual recognition of orphan works « Christian Engström, Pirate MEP -- Topsy.com — 5 december 2010 @ 15:17

  3. However undesirable the drawback Sophie points out about the diligent search model, I believe it’s the best option right now. And it’s not a really good option😦

    But this is just plain scary: ”The burden of proof would shift from the situation today, where anybody who wants to sue somebody for copyright infringement first has to prove that he actually owns the rights, to the reverse situation, where the collecting societies would have to prove nothing, since they would automatically own everything that cannot be shown to belong to a known rights holder.” This is a risk we do not want to take.

    Kommentar av Alex Daniels — 5 december 2010 @ 16:03

  4. Couldn’t you solve the problem with the collecting societies by simply NOT give them the right to enforce any copyright on orphan works?

    Basically people/organizations could choose to pay the collecting society, and therefore be protected legally should the rights holder shop up, or they could choose to just go ahead anyway, at which point if the rights holder shows up he/she/it can sue.

    Just a thought.

    Kommentar av WysiWyg — 5 december 2010 @ 16:30

  5. There is another way that doesn’t breach the Berne Convention. One needs to remember that Berne is an international agreement that regulates how to treat works from _other_ countries.

    There are no provisions against special-casing works from your own country and giving it less protection than required by Berne, as long as you keep respecting the copyrights of other countries.

    Thus, Sweden could take the lead here.

    Kommentar av Rick Falkvinge (PP) — 5 december 2010 @ 17:30

  6. Som jag ser det är förekomsten av orphan works ur upphovsrättsnostalgikernas synvinkel inte en bugg, utan en feature. Ju mer som låses in och hålls borta ur offentligheten, ju lättare blir konkurrenstrycket på nya releaser.

    Det tycker jag är den absolut största buggen i upphovsrätten, och det som gjorde att jag fick upp ögonen för hur rutten upphovsrätten var.

    Kommentar av viktualiebroder — 5 december 2010 @ 18:52

  7. Sorry, wrong language.

    From an IP-nostalgic viewpoint, the existence of orphan works is not bug, but a feature. The profitability of new releases benefit substantially from not having to compete with older works.

    For me that is clealy a bug. The bug that once opened my eyes to the dysfunctions of the current IPR regime.

    Kommentar av viktualiebroder — 5 december 2010 @ 18:58

  8. Actually, very little is required to make this possible within existing law if you’re willing to interpret it.

    The most important thing here is to actually settle the economic side of the copyright. I guess no one is actually really interested in stripping the creator of his status as creator.

    So in order to settle the economic side you would be required to get a declaratory judgement – a court order which declares that the license fee for using the work is set to zero. Declaratory judgements are used to bring clarity in a legal situation where the uncertainty is a drawback for the complaining part.

    In order for this to work, though, it would be necessary, I presume, to extend the service of process so that the defending party can be served by publication in newspapers without being named. For a specific type of cases this is possible in Sweden today.

    This may not be the easiest process imaginable, but it’s very close to the legal toolbox that we already have.

    Kommentar av Johan Tjäder — 6 december 2010 @ 13:10

  9. Diligent search can mean publishing a notice in an officially recognized gazette. The Swedish ”Post and Domestic Times” is such an offical gazette used by the Swedish government and authorities.

    A notice in Post and Domestic Times if delivered digitally will cost you 40 SEK excl VAT. Notices delivered on hard copy 70 SEK excl VAT.

    Regarding post (#8) a court process costs 450 SEK to initiate, but that’s not the point. But rather since there is, almost, a complicated way of achieving alternative #2 you might as well simplify it.

    Kommentar av Johan Tjäder — 6 december 2010 @ 13:20

  10. An unrelated question: is it not time for you, Christian, to get GPG-powered email?

    Kommentar av Mr Profit — 7 december 2010 @ 10:45

  11. This is just like the cases of the heir searchers in Germany.
    In short:
    You are a heir but you don’t know that fact.
    The probate court don’t know the heir so they have to announce the heirship.
    Noone looks at these announcements but the heir searchers.
    The searchers tell the heir:”There is a heirship for you (probably). If you pay us X € we will give you more information.”
    In most cases the heirs have to pay the searchers.

    If the heir don’t go in time to court to claim the heirship, the state (e. g. Germany) is the heir.

    So why don’t you do that with orphan works and their rights, too?

    Kommentar av Anonym — 8 december 2010 @ 23:10

  12. I actually prefer some amount of uncertainty with respect to ”orphan” works, but I think the copyright holder should bear part of it (unlike today, when the entire risk of infringement is on the side of the infringer). If I happen to own the rights to some work which hasn’t been made available in print or otherwise for several years, and I have made no effort to change that, my chance of shutting down someone who does should be near zero. At most, I could be awarded a reasonable share of the profits, if there are any, as if a deal had been made beforehand, but certainly not all of it.

    This could partly be achieved by decriminalizing copyright infringement entirely, leaving only the (pre-IPRED) private law provisions intact. Thus, only copyright holders actively monitoring the use of their works would actually get any money.

    I’m concerned that the diligent search suggested may turn into a formal requirement for recognition of copyright, something which goes against the Berne Convention. If a search of a specified ”number of publicly available databases” is to be considered a ”diligent search”, then copyright protection in effect becomes subject to registering the work with at least one of those databases. It doesn’t matter whether we are talking about a single national library or a plurality of registration services, it’s still a formal requirement.

    Another problem is that even with known heirs to the author of an old work, it may not be clear who owns the rights if they haven’t been accounted for in successive wills, probates and estate distributions. According to Swedish inheritance law, you cannot simply assume that the rights to a previously unconsidered work have been evenly divided among the heirs, but you have to file a formal addendum to the old probate – at least I have seen no legal textbook advice on how to deal specifically with rediscovered works under copyright.

    And I’m not at all fond of the idea of the state or some other public entity ending up as the owner of numerous works of authorship, some of which may be politically sensitive. Intellectual property rights should be distributed on as many hands as practically possible, to avoid virtual monopolies on literature, music and other expressions of culture.

    Kommentar av sm5por — 10 december 2010 @ 18:11

  13. @ SM5POR,

    I don’t think the Berne Convention would be a problem, even though it does say that no registration should be required for the author to get copyright on a work.

    According a court case called ”Deutche Gramophon”, there is a distinction between the existence of a right, and the exercising of that right.

    The author would automatically have the copyright just like Berne says, but if he wants to exercise the rights that this copyright gives him, he may have to actually lift a finger and and least let it be known where people should send the money. This can hardly be considered onerous.

    An analogous situation already exists with collecting societies like STIM: every author has a right to remuneration if his work is played on radio of TV, but if he wants to exercise that right, he has to register as a member of the collecting society. This is much more onerous, since he has to sign away some of his rights to the collecting society to join it, but this is still considered compatible with Berne.

    Kommentar av Christian Engström — 11 december 2010 @ 17:07

  14. Christian, the whole point of performing a ”diligent search” of some well-defined set of databases, and then formally declaring the work ”orphan” if the author cannot be found in this way, is to remove legal uncertainty on the part of someone who wants to republish the work without infringing the author’s rights.

    If, after a work has been declared ”orphan”, the actual author turns up but is no longer allowed to receive even a share of the publisher’s profit, then his copyright has in effect been nullified and is therefore no longer recognized, much like the rights to any work after the term of protection has lapsed. To prevent this from happening, the author must register his work before publishing it, which would violate Berne.

    I agree that for most authors who expect to have a say in the distribution of their works, this is not a big hurdle, and you can look at the USA for an example of how this works out in practice, as registration was a prerequisite for copyright prior to 1978: Professional authors and publishers register for protection, while amateurs don’t (with occasional exceptions on both sides, of course).

    I’m not only concerned about what Berne allows; I’m personally in favor of automatic copyright. If I write an essay, and someone somehow manages to earn a good profit from selling copies of that essay, I expect a small share of that profit. If he doesn’t offer me that share voluntarily, I can turn to a court and demonstrate that I did actually write that essay. If the court responds ”Sorry, it may be your essay, but you failed to register, so you are out of luck. Now go away and stop pestering this fine businessman who is enriching civilization with his publication”, I’ll hardly be encouraged to write another essay after that.

    But regardless of whether a registration requirement is a good idea or not, you cannot claim that declaring a work ”orphan” merely because it’s not found in some database or another would be compatible with Berne. And whether the procedures involving the collecting societies are compatible with Berne is a different matter. One issue at the time, please.

    Kommentar av sm5por — 11 december 2010 @ 23:10

  15. @sm5por

    Nothing requires you to register your work in the outlined proposal. But a register would be a good tool and a service for all copyright holders that want to protect their work.

    A diligent search cannot be limited to searching a few databases, though. It would have to be something more to show that you really have tried to get hold of the creator.

    Kommentar av Johan Tjäder — 13 december 2010 @ 10:04

  16. This is what Christian wrote, when describing a proposed solution:

    Each Member State will be required to set up a system where they specify a number of publicly available databases that should be searched before a work published in that country can be given orphan status.

    Granted, this is only a proposal, and an actual statute may certainly involve ”something more” than searching ”a few” or ”a number of” databases: Ask a professional librarian, make a public request for the rights holder to come forward, walk to Rome to see the Pope, whatever. The criteria could even be left undefined, leaving to the court to decide in each case what is and what isn’t enough to declare a work ”orphan”.

    But regardless of the criteria chosen by either the legislator or the court, simply allowing a work to be declared ”orphan” before its predefined term of protection has come to an end means that copyright has been made subject to a formality, the possibility of identifying and locating the rights holder. While there may be non-trivial ways of tracking down the owner of the rights to an obscure book even when the author has done nothing to preserve public knowledge of his identity, the author who does want to be remembered can easily achieve that by registering in one of the proposed databases, and I guess most authors will do so. At that moment, we have in effect introduced a formal requirement to merely recognize copyright. Is it tolerable? Perhaps. But it is a formality, contrary to Article 5(2) of the Berne Convention.

    What would not be considered a formality of the aforementioned kind? Well, you could recognize the author’s copyright even after an unsuccessful search, but you could remove criminal liability for infringement, and you could cap damages for unauthorized publication to what would be considered a reasonable share of the profits (which may well be zero), a kind of mandatory license. Such a work would not be considered ”orphan”, but publishing it anyway could be made essentially risk-free. In the Berne Convention, anonymous and pseudonymous works are mentioned in Articles 7 and 15, and the procedures for dealing with those could be used as a template for how to deal with unidentified rights holders – but I agree with Christian that we should keep the collecting societies out of any deals.

    After having survived a century of authors, professionals and amateurs alike, enjoying the same rights to publish their works in print and in broadcast media regardless of any formal registration, I find it odd that when we enter the era of peer-to-peer production, people start looking for ways to distinguish the professionals and yield more rights to them than to amateurs. Registration for copyright is a financial and social divider.

    Kommentar av sm5por — 13 december 2010 @ 19:41

  17. A collecting society getting automatic control over everything not explicitly claimed by a creator him/herself is a new twist on communism. Copyright is a vehicle for anti-freedom.

    Kommentar av Inscius — 2 juli 2011 @ 18:06


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