You are here → Home → News & Policy
International Activity on Orphan Works
06/12/2012
2012 has seen the European Union, UK and the US all making attempts to address the issue of how to deal with “orphan works”.
What are orphan works?
“Orphan works” is a term applied to material that does not have an identifiable copyright owner. Orphan works are in something of a limbo state as there is uncertainty surrounding their use (given that it’s not possible to obtain permission to use them and that working out whether copyright has expired often requires knowledge of when the creator died).
The question of what to do with such works is relevant for a range of institutions such as libraries, museums, galleries and others that have large collections of material. Orphan works are also relevant for any individual wanting to use an orphan work in his or her project.
Interested parties should read our “Orphan Works” information sheet for an outline of key issues. This is available at http://copyright.org.au/find-an-answer/browse-by-a-z/.
The European Directive
The European Council adopted its directive on certain permitted uses of orphan works [1] in October 2012. The directive was published in the Official Journal of the European Union on October 27, 2012.
Directives are effectively a statement of the end-goals that should be achieved in a given area. Each member state must work toward implementing the same end-goal, but it is up to each member state to amend and structure its domestic law to achieve the broader goals set out by a particular directive. EU member states have until 29 October 2014 to implement the directive into their domestic laws.
The directive primarily applies to cultural institutions such as libraries, educational institutions, archives, galleries and public broadcasters. Organisations have to identify potential orphan works and then conduct a “diligent search” to ascertain the copyright owner. When conducting the search, appropriate sources must be consulted (sources vary depending on the type of material being assessed and a list of relevant sources is included in the directive’s annex).
If after conducting a diligent search, no owner is identified, then the material is considered an “orphan work”. Once categorised as an orphan work, eligible institutions may then use the orphan work for purposes that “achieve aims related to their public interest mission” [2] without needing permission. Article 6(2) states that such uses include “in particular the preservation of, the restoration of, and the provision of cultural and educational access to, works and phonograms contained in their collection”.
Once a work is declared an orphan work in one member state, it is considered an orphan work in all other member states. However, the directive states that provisions should be put in place for rightsholders to end the orphan works status on material they later discover has been granted that status [3] and that some mechanism for fair compensation to rights holders be implemented [4].
The full text of the directive can be accessed at http://ec.europa.eu/internal_market/copyright/orphan_works/index_en.htm
UK Orphan Works Reform
The UK government has a proposed orphan works reform as part of its Enterprise and Regulatory Reform Bill (HC Bill 7). The orphan works components of the bill are primarily in provision 68(3) and if passed, will set in place the foundation for the scheme.
Under the scheme, authorised bodies will be able to grant licenses to people or companies wishing to use orphan works – in effect, stepping into the place of the copyright owner as licensor. An up-front payment would be taken and the money set aside for copyright owners that reveal themselves down the track.
The bill states that “for a work to qualify as an orphan work, it is a requirement that the owner of copyright in it has not been found after a diligent search made in accordance with the regulations” [5]. Material that has satisfied the “orphan works” requirement may be then be licensed for both non-commercial and commercial uses. This is in contrast to the European Directive, which does not permit licensing of orphan works for commercial purposes.
The UK’s proposed scheme also contains an “extended collective licensing” component that will allow a collecting society authorised for a certain class of materials “to grant copyright licences in respect of works in which copyright is not owned by the body or a person on whose behalf the body acts” [6]. The means that an approved collecting society will be able to provide a licence to use any orphaned material for commercial and non-commercial purposes – whether or not the creator is a actually member of that society.
Whilst there are expected to be “opt-out” provisions for creators that do not want to have their material licensed by the collecting society, the proposed UK scheme reverses usual copyright licensing practice (in which creators opt-in to licence or have their material licensed by another party).
This, particularly in light of the commercial uses allowed, has proven unpopular with a number of creator groups, particularly photographers (photographs are particularly susceptible to being “orphaned” online). US photographer groups have argued [7] that the scheme will allow a vast amount of non-UK material to be used without permission or compensation to the rightsholders, which will affect the value of the material as well as being uncertainty into licensing use of foreign works in the UK.
The bill has passed through the House of Commons, is currently before the House of Lords after receiving its second reading on November 14 and is next scheduled for a House of Lords committee hearing on December 3. We will have to wait and see whether arguments from stakeholders both for and against the scheme will lead to further amendments.
Read the full text of the bill at: http://www.publications.parliament.uk/pa/bills/lbill/2012-2013/0045/lbill_2012-20130045_en_8.htm#pt6-pb1-l1g65
The US Issues Paper
October saw the US Copyright Office announce an inquiry into orphan works, stating that it “has long shared the concern with many in the copyright community, that the uncertainty surrounding the ownership status of orphan works does not serve the objectives of the copyright system”[[8] The Notice of Inquiry was published on October 22 and submissions are being accepted until January 4, 2013.
The Copyright Office expressed an interest in whether relevant changes in the legal and business environment may foster a resolution of the issues and whether the most appropriate form of addressing the issue would be legislative, regulatory or voluntary.
The Notice of Inquiry frames the issues in two broad areas: the first being use of orphan works on an occasional, isolated or ad-hoc basis (for example, this may include a publisher, individual or filmmaker wanting to use orphan works material).
The second broad issue is how to address orphan works issues in the context of mass digitisation, projects such as preservation projects in museums or galleries or commercially run projects like the Google Books project.
For further information on the inquiry, as well as a list of US-based orphan works resources see: www.copyright.gov/orphan/
Relevance to Australia
Domestically, orphan works have been the subject of past enquires as well as the current ALRC Enquiry into copyright and the digital economy and several organisations such as SBS [9] and the National Film & Sound Archive [10] (which both hold significant amounts of orphan works material) have released statements about their policies on use of orphan works.
Issues under consideration in the ALRC review include (i) whether the current legal treatment of orphan works affects the use, access to and dissemination of copyright works in Australia and (ii) whether domestic copyright law should be amended to create a new exception or collective licensing scheme for use of orphan works.
Australian stakeholders will be monitoring international attempts at developing a solution to orphan works issues in light of the insight such implementations may bring to orphan works–related reform in Australia, if a future need arises.
[1] Directive 2012/28/EU
[2] Article 1(1)
[3] Article 5
[4] Article 6(5)
[5] Proposed provision 166A(3) in Enterprise and Regulatory Reform Bill (HC Bill 7)
[6] Proposed provision 166B(1) in Enterprise and Regulatory Reform Bill (HC Bill 7)
[7] See joint letter of 8/11/2012 to Dr Vince Cable from organisations representing photographers
- http://asmp.org/pdfs/US_UK68ERRB.pdf
[8] http://www.copyright.gov/orphan/