What price “expropriation”?

What price “expropriation”? (by Prof. Martin Kretschmer)

A new empirical study of so-called Orphan Works comes to surprising results.

If you don’t know who owns a copyright work (a book, a film, a song, an image), you can’t seek permission to use it. In 2011, the Hargreaves Review stated: “The problem of orphan works – works to which access is effectively barred because the copyright holder cannot be traced – represents the starkest failure of the copyright framework to adapt.” (Digital Opportunity: A Review of Intellectual Property and Growth; London: Intellectual Property Office; 2011; p. 38)

The UK Government has since struggled to deliver a viable solution that would release orphaned contents of an estimated 2,500 museums, 4,000 public and academic libraries, 3,000 community archives, and 3,500 trust archives. In the Internet world, the Government has drawn the ire of photographers who fear their works will be orphaned deliberately. It is extremely difficult to track the original source of images that appear on social media services such as Facebook, Twitter, Tumblr, or Instagram. Meta-data, identifying author and origin, are routinely stripped.

This new study commissioned by the UK Intellectual Property Office, and undertaken by academics from Bournemouth University, and the CREATe Centre at the University of Glasgow, offers a clearer understanding of how orphan works are regulated and priced in other jurisdictions, and how a pricing system could be structured to ensure that “parents” are fairly remunerated if they re-appear, and users are incentivised to access and exploit registered orphan works.

The report presents the findings of a detailed empirical study, simulating the clearance of orphan works (i.e. works whose author or owner cannot be located) in seven jurisdictions (USA, Canada, India, Japan, Denmark, Hungary, and France). Scenarios tested for both commercial and non-commercial use include: Historical geographic maps for a video game for mobile phones; A vintage postcard collection for web publication and eventual sale of prints; National folk tune recordings for multimedia/teaching (DVD); Re-issuing a 1960/70s TV series as part of a digital on-demand service (one series); Mass digitisation of photographs (archives) by a public non-profit institution, with possible sale of prints (above 100,000 items); Mass digitisation of books by a private for-profit institution, with possible sale of books (above 100,000 items).

None of the examined orphan works licensing schemes appears to be working well. Generally, there is low up-take, probably due to bureaucratic hurdles. Even in Canada, which the study identifies as the best developed and most transparent system, only 260 licences have been granted between 1990 and 2012.

For the re-issuing of a TV series, or online publication of collections of mixed artefacts (such as from a municipal archive), no tariffs were offered anywhere.

The quoted licence fees for mass digitisation projects (above 100,000 items) were very high (typically exceeding £1 million per year and time limited to a maximum of 5 years, making investments unattractive).

In summary, the study finds that formal licensing schemes for the use of orphan works are in danger of failing their purpose. If it is the purpose of the coming UK Regulations (under the Enterprise and Regulatory Reform Act 2013) to revitalise works that lie barren, and enable the digitisation of our cultural heritage, lessons need to be learned. Under-use, rather than over-use is the main threat that will face state-sponsored licensing schemes.

The full study will be released here tomorrow (2nd July 2013), to coincide with a launch event at the Law Society in London:

2 July 2013, The Law Society, 18:00-20:30
113 Chancery Lane, London WC2A 1PL

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