Orphans Back in the Frame
by Ronan Deazley
The government’s recent response to the Hargreaves Review of Intellectual Property has attracted praise and criticism in equal measure. One contentious if familiar issue is that of orphan works (for previous commentary, see Source 50). A copyright-protected work is a so-called orphan work if the copyright owner cannot be identified or located by someone seeking permission to perform one of the exclusive rights set out under the copyright regime (copying, distributing, communicating the work to the public, and so on). From the government’s perspective "it benefits no one to have a wealth of copyright works entirely unusable under any circumstances because the owner of one or more rights in the work cannot be contacted". The government continue: "This is not simply a cultural issue; it is a very real economic issue that potentially valuable intangible assets are simply going to waste". It is the fact that the government proposes to enable the commercial re-use of orphan works that has drawn criticism from the photographic community, and in particular from the Association of Photographers, and the Stop43 campaign group (stop43.org.uk). On this point, Paul Ellis, one of the activists behind Stop43, recently lauded developments in Europe designed to address the orphan works phenomenon. In May 2011 the European Commission proposed a new Directive on the use of orphan works which if adopted would have to be implemented throughout the European Union. For Ellis, what is particularly important about the proposed Directive is that it is limited to "the cultural heritage sector for cultural purposes only" (British Journal of Photography, July 2011). That is largely true. However the scope of the Directive is far more restrictive than Ellis appears either to realise or concede.
Under the proposed Directive a work will be designated orphan if after a diligent search in the country where the work was first published or broadcast the copyright owners cannot be found. Once designated orphan, the Directive provides for two categories of use: permitted uses under Article 6 (which Member States must enact) and authorised uses under Article 7 (which are optional). A.6(1) provides that cultural institutions (libraries, museums, archives and so on) shall be permitted to use orphan works contained within their respective collections as follows: (i) copying the work for the purposes of digitization, preservation, restoration, indexing, and cataloguing; (ii) communicating the work to the public, including making it available online. The Directive does not require that any payment should be made for these permitted uses while the work remains orphan (although neither does it preclude payment). Moreover A.6(2) makes clear that these designated organisations are only permitted to make use of orphan works under A.6(1) in order to achieve their public interest missions: that is, providing cultural and educational access to the works held in their collections. Use of an orphan work outside that remit is not permitted under the Directive unless the Member State has implemented a mechanism for authorising such use under A.7. If a Member State provides for such authorised uses, the Directive requires that payment must be made taking into account the nature of the work and the use concerned. That is, a reappearing owner who puts an end to the orphan status of his or her work has a right to be remunerated for the use that has been made of that work under A.7 (although Member States are allowed to limit the period during which a reappearing rights owner can claim these payments).
However, the problems for cultural institutions that hold large collections and archives of photographic material are twofold. In the first place, the Directive only applies to published works. Second, the Directive applies only to works that have been published in the form of books, journals, newspapers, magazines and other writings, as well as films, audio and audiovisual material. That is, free-standing artistic works such as maps, drawings, and photographs do not fall within the compass of the Directive at all. The European Commission’s Impact Assessment of the proposed Directive is revealing as to the reason for this omission: "It would be extremely difficult to identify the owners of entire collections of photographs whose provenance is unknown... Moreover, the technology to carry out visual searches as compared to text based searches is not as highly developed and is very costly". In short, conducting a diligent search for the owners of free-standing artistic works is likely to be much more difficult and more costly than is the case for published literary works, films, and so on. No doubt this is true, and particularly so for photographs which often do not carry any information about either the authorship or the copyright ownership of the work. But aren’t these exactly the circumstances under which we should be making it easier for publicly-funded cultural institutions to make their holdings more accessible to the public? When tracking down copyright owners is likely to prove particularly troublesome and costly?
People are entitled to be sceptical about the overtly commercial analysis that underpins much of the government’s endorsement of the Hargreaves Review, and in particular the claim that the proposed legislation on orphan works has "no economic downside". Maximising income generation should never be the sole imperative shaping any nation’s copyright policy. Education, research, and facilitating access to our cultural heritage are considerations that must form part of the bedrock of any enlightened copyright regime. Ellis acknowledges that the problem of orphaned work held in archives and museums must be addressed, and especially with respect to digitisation for preservation purposes. But, in its current form, the Directive will have little impact with respect to improving public access to the estimated 500m photographs held in museums, archives and libraries throughout Europe. If the proposals on orphan works in the Hargreaves Review disappoint, so too does the Commission’s proposed Directive.