The Bill currently going through Parliament looks at modernising and improving legislation around a number of key areas to help businesses in how they operate, whether this is dealing with red tape or employment law. Copyright reform is a much needed feature of the Bill.
You can read an overview of the changes to copyright in the Bill here.
A recent addition to the Bill on copyright introduced a scheme that would allow the licensing of genuine ‘orphan works’. It would also create the power to authorise ‘voluntary extended collective licensing’; this a form of licensing that allows a collecting society (that meets certain criteria) to license all works in its sector, except those that have been opted out by the rights holders.
This announcement generated comment in the media and online, such as this article in The Register that unfortunately had a number of inaccuracies about how both schemes would operate. In the next series of blogs for the Bill we thought this would be a good opportunity to clarify the proposals and address any of these misunderstandings.
Today we’ll look at orphan works reform, what the scheme entails and the benefits that come with it. Tomorrow we’ll go into the details around the proposals and the misperceptions on what has been proposed – and the final blog will look at the Extended Collective Licensing (ECL) programme.
First of all, what is an Orphan Work?
An orphan work is a work protected by copyright, for example a photograph or piece of folk music where the rights holder is not known or can’t be found. There are many interesting orphan works, particularly in cultural institutions that at present cannot be displayed to the public or reproduced because the copyright owner cannot be found to ask their permission. For example, the Imperial War Museum has an estimated 2.2 million photographs where the rights holder has not been traced. This is a restriction on both cultural and economic growth. For example writers and publishers cannot use certain unique photographs to illustrate books on major world events. Similarly television producers cannot use unique archive film in documentaries. As well as enhancing cultural knowledge, the sale of such books, films and television programmes can contribute to economic growth.
The Bill is proposing the creation of a licensing organisation to allow use of orphan works for commercial and non-commercial purposes. But the proposals contain a number of key safeguards to protect the rights of the copyright owner, including the need for an extensive search for the rights holder, verified by an independent licensing body.
It is also proposed that compensation appropriate to the type of work and type of use is set aside if they do reappear. In addition, when the name of the rights holder is known (but they cannot be located) they must be credited whenever the work is used. If the name is not known there will need to be a notice, explaining how rights holders can contact the
authorising body to regain control of their work and to claim the remuneration set aside for them. It will also be assumed that the author has asserted their moral rights; that is to say that their moral rights must be respected and have not been waived. This means the rights holder has a right of attribution and right to object to derogatory treatment.
The article in “The Register” has a number of inaccuracies about what this change to the use of orphan works will mean in practice – we’ll address these points in full in our next post.
If you have any thoughts, or would like to ask any questions, please post a comment and we’ll try and answer as many as possible.
If the IPO deem orphan works such an important issue that it requires significant new legislation one would suppose that ensuring that orphan works are not created in the first place would be the first priority.
I’m sure that the IPO are well aware that copyright metadata embedded in photographs are routinely removed by many publishers, the media and internet companies to name but a few. The result of course is that vast quantities of new orphan works are created every day.
The owners of such newly created orphan works are powerless to stop this blatant abuse of creators rights, the law is not on their side.
Of course the IPO will respond that removal of metadata is already a civil offence, but it is only an offence if the owner of the copyright work can prove that such removal was carried out with the intent of infringing, or inducing the infringement of, their copyright.
This is impossible to prove when the only intent the organisation has is to strip copyright metadata from a photograph.
Removal of metadata should be a statutory offence in its own right carrying a fixed penalty to be imposed by say – a copyright ombudsman.
I would like the IPO to explain why they will not consider making stripping of metadata an offence with a statutory penalty, regardless of the intent behind such stripping.
296ZG of CDPA makes it an infringement to remove metadata where he knows, or *has reason to believe*, that by removing metadata he is enabling, facilitating or concealing infringement. One does not have prove an intent to infringe.
Also, there may well be bona fide reasons for a third party removing metadata, e.g., when the metadata is inaccurate or misleading. So automatically making it an offence is a non-starter.
Having said that, I agree with Mr Harrison’s basic idea that a breach of this part of the CDPA should become an offence, rather than a civil case matter.
I am eager to learn what kind of sorts you ask for to find out the right holders?