Digital Britain Report and Orphan Works
On 16 June the Government published The Digital Britain Report, its strategic vision for ensuring that the UK is at the leading edge of the global digital economy. This report received a lot of coverage in the press because it:
- included proposals to throttle the internet speed of those caught illegally file sharing and allow Ofcom to force ISPs to collect data about those sharing files.
- recommended that every household have access to a connection of 2Mbps or more by 2012.
- proposed that households and businesses will have to pay a £6-a-year tax per landline telephone to extend internet access across the country.
I want to talk about something else: the report also contained proposals about the use of orphan works.
So what are orphan works? An orphan work is a work that is in copyright and where, even after an extensive search, the copyright owner cannot be identified or found.
Orphan works form a large part of our culture and heritage that is virtually inaccessible. These works include books, photographs, movies and television programmes.
These works cannot be used without risk of civil and even criminal prosecution. They cannot even legally be digitized so that they can be searched. The quantity of orphan works is vast: the British Library estimates that 40% of its archive consists of orphan works and the BBC estimates that about one million hours of orphaned programmes are contained in its archives. All this material is effectively lost to humanity. The consequence for film is much more dire: old film deteriorates and will be lost forever unless it is preserved and restored. But no one is going to pay to restore film that cannot be shown.
The problems surrounding orphan works include:
- Some works are physically deteriorating and may be lost entirely before they can be preserved or restored
- Some works are effectively inaccessible to the public. They are only available to those who can access copyright libraries.
- Some works are effectively inaccessible to anyone. They are not indexed, searchable or discoverable so their content cannot be found even by a dedicated searcher such as a historian, filmmaker or publisher with a keen interest in their content.
- Orphan works do not generate income for their copyright holders
- Orphan works cannot be republished, even by someone willing to pay the copyright holder, since the copyright holder cannot be found
You may recall the Mitchell & Kenyon Collection of films that was screened on the BBC a few years ago. The films were rediscovered in the 1990s, after languishing for many decades in the basement of a shop in Blackburn. The films were expensively restored by the BFI (British Film Institute). These films give a fascinating view of Edwardian England and form the largest collection of early non-fiction films in the world. These films date from about 1900 and are out of copyright – this means they can be restored, copied and shown to the public.
Suppose someone found a collection of old films about the Second World War, or the Korean War, or perhaps showing some interesting aspect of our industrial heritage in the 1950s. Could the BFI legally restore and distribute them? Could the BBC show them as part of an educational or cultural programme? The answer is no, not without obtaining permission from the copyright owner(s). But how can the copyright owner(s) be found?
Suppose you found an old photo of your parents’ wedding, taken by a professional photographer. Could you have it professionally retouched? The answer is no, not without obtaining permission from the copyright owner.
When a copyright owner cannot be found projects which might benefit our national heritage are abandoned. Scholars cannot make use of letters, images, books and manuscripts. Publishers cannot republish old works that have been forgotten. Museums are frustrated in the creation of exhibitions, books and websites. Archives cannot make rare footage available to wider audiences. Documentary filmmakers must exclude important source material from their films.
Digital Britain Report and Orphan Works
To its credit the Digital Britain Report looks at the problems associated with orphan works.
The Executive Summary, paragraph 47 states:
we will also make some changes to the legislative framework around copyright licensing, to tackle problems such as those surrounding the use of so-called orphan works and thus help digital markets in those works to develop.
paragraphs 43 and onward in Chapter 4, Creative Industries in the Digital World state:
43. …In order to pave the way for a more effective framework to deal with orphan works, the Government proposes to introduce legislation to enable commercial schemes for dealing with orphan works to be set up on a regulated basis.
…However, the expectation is that anybody wishing to use orphan works will be expected to secure an appropriate permission from the Government first…
Where the Digital Britain Report falls down
The report fails to understand a fundamental point: there is the public interest case for making orphan works more easily accessible and there is the copyright holder’s interest in being reunited with their works, and those two interests are rarely in conflict.
We are currently in the lose-lose situation where works are inaccessible to the public, and where copyright holders are not getting credit or payment for their works. We need to find solutions that work in the public and copyright holders’ interests. Works need to be un-orphaned.
There are two main solutions being proposed, I’ll call these ask permission and ask forgiveness.
This is the approach currently favoured by Britain and the EU. It means anyone proposing to use an orphaned work must as a Government approved body for permission to use the work (after doing a due diligence search for the author).
The trouble with this approach is that it simply does not address the problem. It doesn’t help identify copyright owners. It doesn’t allow mass digitization for indexing purposes. It prejudices the legitimate rights of the copyright holder. It doesn’t address the fact that there are vast quantities of orphaned works.
The latter point is particularly damning. This approach has been adopted in Canada. Since 1990 the Copyright Board of Canada has granted permission for the use of 237 works, these include “the reproduction of Châtelaine magazine covers in a promotional calendar”, “the reproduction of two nursery rhymes in an educational textbook” and “the reproduction of six images of aliens (source unknown)”. This is hardly unlocking the lost works of Canadian culture. (See http://www.cb-cda.gc.ca/unlocatable-introuvables/licences-e.html )
This is the approach being pursued in the US. There, provided a user makes a documented, good faith, diligent but unsuccessful search for the copyright holder, the user is free to use the work. (Of course the terms ‘diligent’ etc need to be defined, but that is a matter of legal detail.) The user is indemnified against prosecution. If the copyright holder resurfaces then they are entitled to a reasonable compensation for use of their work (again the precise legal meaning of ‘reasonable compensation’ needs to be defined – the US report goes into this in some detail).
Everyone wins. Our cultural heritage is unlocked, and copyright holders can get compensation for their works.
We need a digital archive of our culture that is available to historians, researchers and people who are simply curious. We need a means of republishing orphan works. We need to unlock our lost culture. Let’s not enact legislation that prevents all that.
EU Digital Libraries High Level Expert Group – Copyright Subgroup’s Final Report on Digital Preservation, Orphan Works, and Out-of-Print Works
United States Copyright Report on Orphan Works
Copyright Policy: Orphan Works Reform, Lawrence Lessig’s proposal