Annabelle Shaw – “Elementary? It’s more of a three pipe problem” – Unlocking Film Heritage & Orhpan Works

Annabelle Shaw (Rights Database Manager, BFI)

Good morning everyone.  Thank you very much Claudy and Bart and everyone for organising this event, and I’m so pleased to see so many people here today.

My name is Annabelle Shaw, I’m the Rights Database Manager at the British Film Institute.  The Rights and Contracts Department is partly a business affairs department for the distribution activities of the BFI, but we also do an awful lot of work with clearances on the archive collections that the BFI holds in the BFI National Archive.

So my talk today is, ‘Elementary?  It’s more of a three pipe problem’.  When I first saw this quote I thought ‘oh, pipes as in something moving along a pipe’, trying to get works out there and accessible, but actually this quote is from The Red-Headed League story, and  about having to smoke three pipes to think about something and work out the answer which seemed quite apt for dealing with copyright.

The world of Sherlock Holmes lends itself very well to today’s topics; the discipline of rights research.  Rights research is a game of detection that requires diverse expertise, and extrapolation from disparate sources.  You have to fill in the gaps, you have to take a punt, and you often have to follow your gut instincts., It’s’ both methodical and messy and, like all detective stories, where the clock is ticking to crack that case before the next crime is committed, rights research is usually carried out with a pressing deadline bearing down on you.  So your ability to actually take time out to smoke your three pipes is limited.

As we’re at the BFI I thought I’d do a very brief introduction and background to the BFI National Archive.  It was founded in 1933 and started collecting films into the archive two years later.  It is the lead organisation for film in the UK, and holds one of the largest collections of film and TV and other special collection materials in the world.

Back in 2011 or ’12, when the BFI did a response to consultation to government on changes to copyright law to work out a way of dealing with orphan works, which I’ll come to in more detail later, it was thought that about 15% of its non-fiction holdings are potentially orphan works.

The BFI owns the copyright in a few collections, mainly those that we have had assigned to us from previous nationalised industries like British Transport Films, National Coal Board Films, and more recently the Arts Council Film Collection, and together they amount to thousands of, however, they only amount to 1% or 2% of the entire holdings of the BFI Archive.

So why elementary?  From my perspective, copyright pertains to the elements, the rudiments, the first principles of the work of an archive.  In the 1930s film archives were set up in many or most of those film producing countries at the time, including the BFI, and at that time films were not protected as copyright works in themselves, they were protected as either a series of photographs or as dramatic works.  Nonetheless copyright has been around longer than film archives and, since the 1956 Copyright Act, films have benefited from their own protection as film works.

So in those sixty years or so from that Act, much has changed, and the twenty-first century has seen the explosion of demand for archives to be accessible online and, to a large degree, justify their existence through providing access, and also the huge changes in technologies that mean that you can facilitate  that access.

But access is synonymous with copyright, there is not one access route that is not somehow dependent on copyright, whether it be an understanding of the limits of copyright so when does copyright expire, understanding the exceptions to copyright where archives themselves can benefit in their public mission to preserve and provide certain routes of access for their collections, as well as those exceptions that the public at large can use such as fair dealing, and also through the mechanisms of copyright licensing that enable wider access, commercial access, the recreation of a potential market, the potential for income generation and the recoupment of investment particularly for the creation of digitised materials.

While copyright is potentially a monopoly, which just seems a bad thing, monopolies are of little use if there’s no market, and the archives can create that market.  There are works that are lost, that are forgotten, not seen as commercially viable or interesting, and so they’re not necessarily invested in.

Archives can and do invest in these works all the time, it is part of our mission.  And in copyright works, out of commerce works, unpublished works and orphan works, all have a value, all have a potential value, and a potential for a market, but only if they actually exist in a form that they can be seen, and archives ensure that they continue to exist and be seen.

In 2012 the BFI published its five year strategy called Unlocking Film Heritage and, one of the key priorities for the period of 2012 to ’17, Unlocking Film Heritage, comprised three interlinked projects which aimed to deliver a major expansion of public free to view access to British film by investing Lottery funds into a programme of preservation, digitisation, interpretation and access of films that originated on film and were not generally currently accessible legally.

The first strand of this project was to digitise ten thousand films, five thousand from the BFI National Archive, and five thousand from the Collections of the National and Regional Film Archives, and some commercial rights holders.

So what, what did we need to do for all this?  The main routes to make these films available were through our video on demand platform, BFI Player, which we’d launched October 2013, and also through the BFI Mediatheque, you’ll see there’s a lovely new revamp Mediatheque just outside, which opened a few months ago, to enable this access and viewing across the UK.

The overarching driving force for our film selection on this project was not based on collections, nor was it based on the copyright status of a work or really the material status of a work, but by curatorial themes which provided the framework for the editorial presentation and the publication schedule for the films.  These themes were historical, social, and cultural and genre based, so we have themes like 1917 on Film, Suffragettes, Punk, Comedy, and our biggest flagship collection which is Britain on Film which you can view and search by using an interactive map.  If you look online for Britain on Film you can find it and search for your home town, where you’re studying, where you live, and see what films are there.

From a purely copyright perspective, this was a challenge, not least because we have five thousand films to try and work out who owns the rights to them, but also we had this rolling publication schedule which meant that the tasks of selecting films, researching them,  clearing them, and publishing them, went along in parallel, and rather than having the approach of we’re going to digitise this chunk of stuff and then we’ll think about what we’re going to do with it, we had fifty-six publication deadlines rolling all the time as we were selecting, as we were researching and as we needed to publish.

So for us in particular it was a challenge because a film collection selected in 2012 would include let’s say fifty films, some of them might be out of copyright, some in copyright, for those that were owned by a third party we would obviously go and clear them.  Then in 2014 another collection would come along and there would be another collection of films that were owned by the same rights holder, so we had to go back to the rights holder.  Repeat requests to rights holders can be an annoyance, especially when you’re not offering them any money, so this was a tricky thing to deal with.

But once the curatorial selection was made, our first step was to do a copyright status check to determine whether works were out of copyright, in copyright, owned by the BFI, Crown copyright works for which we are a delegated authority so can licence them and use them, and for those works that were in copyright, whether we knew the rights holder or not.

So in terms of the framework of copyright helping you do stuff, facilitating your access, it is there, it shouldn’t always be seen as an obstacle.

My mantra for this work   was, I’ve got it up there, ‘plan, research, persist, licence or risk’.  This sort of goes round in my head all the time.  We worked with our brilliant programme manager, Colette McFadden who established the workflows across all the teams and tasks involved at the BFI and the publication schedules to ensure we could have as much time as could be squeezed from the busy timelines to research and clear films which we anticipated would require more work, in time for publication, and to identify the easy wins which would require less rights work.

So the status determination was carried out by information that we have readily available at the BFI, our collections information database (CID), our rights system, which meant that out of copyright, BFI owned titles, Crown works, could just sail through to the next stage of digitisation and we didn’t really have to worry about them anymore, and it meant that we could focus then on those third party owned titles.

So overall each category of film, this could be fiction, non-fiction, adverts, public information films, promo films, amateur films, home movies, all require different approaches, there are different rights holders, they were made for different reasons, some were made to be seen publicly, some really weren’t.

Because these films span over a hundred years, their authorship, ownership, creators, span the different copyright acts that we have to play with, so we have the 1911 Act, the 1956 Act, the 1988 Act, and even earlier the Fine Art Copyright Act, and under those acts you have to extrapolate who the authors are and therefore who the owners are of copyright, and this is a list of various titles, legal entities, legal fictions, created to assign a copyright ownership or authorship.

So the way that these people might be credited in a film, you have to try and join the dots of who they are, if you’re saying it’s the maker of a negative would that be the producer, for instance.

Now these are mainly the authors and owners of films, the film work as a whole, but there are also of course third party rights within those films, so you double up this list because you’ll have all the creators and authors of those individual works that might be used in the film, and then at the bottom of the slide you have their heirs, their estates, the successors, and that’s where the detective game really kicks off about how to find these people.

I’m now going to talk about orphan works, because orphan works are the ultimate in detective work, the diligent search, how to find people.  Orphan works are those in copyright works where the rights holders are unknown or cannot be located.  It’s been a long time for archives, museums, libraries and other institutions lobbying at various levels to say we needed something to help us make these works available because technically before 2014, in the UK, if you were to publish an orphan work or do anything with an orphan work you were infringing copyright.

So the scheme came in under the EU Directive of 2012.  It came into the UK law in October 2014, and there are two routes to using orphan works in the UK, one is through a UK licensing scheme known as OWLS where anybody can make an application to use any copyright work for any use, commercial or non-commercial within the UK, subject to doing a diligent search, and if that application is accepted they’ll get a seven year non‑exclusive licence.  The other route is the exception to copyright which is available to cultural heritage organisations, to digitise and make available online their orphan works that they hold in their collections, and again it’s subject to a diligent search.  It doesn’t apply to all works, they’ve listed here that it’s a select group of subject matter.  And the other thing you do is then once you’ve done your diligent search is you register that on the EU IPO orphan works database which is the first copyright database of its kind at an EU level.

The orphan works’ problem is at its heart an informational problem, exacerbated by elements of the copyright regime, namely the length of duration, but really the problem is information, or rather the lack of it, and there are many reasons why there is a black hole of information because works were made with no intention of public or commercial exploitation.  They were made for a myriad of purposes and perhaps little or no thought was given to their legacy, longevity or that one day they would end up in an archive and that the archive’s role would fundamentally change from one of purely preservation to preservation and access.

So it might seem a little odd, or perhaps even a bit perverse, that the answer to the orphan works’ problem is an information one because you have to go and find more information, and that happens through the diligent search.

The diligent search itself basically has in effect codified the practice of rights research, or it could act as a starting point for the codifying of rights research.

The Intellectual Property Office in the UK has published guidance and a checklist of the sources that you need to refer to and check to try and find rights holders, and I think this is one way that the orphan works scheme can be used to highlight within organisations the need for greater collection of rights information at source when you first acquire films into your collection, but also the information that you’re holding within your catalogue system needs to be able to talk to other systems in your organisation.

So rights research and diligent search, as I said, are methodical and messy.  We’re fortunate at the BFI, we’re one of the sources that you need to go and check when you do a diligent search, so we’re starting from an advantage position potentially, and we have a lot of in‑house resources, our collections information database, Screenonline, we also have a lot of colleagues we can talk to who will have a lot of information.  The institutional knowledge is key, but ultimately that knowledge needs to be captured somewhere so that people can still refer to it in twenty/thirty years’ time or longer.

On this slide these are just some of the sources that you need to go and look at to try and find a rights holder.  Some of them may be fairly obvious in terms of unions and directories.  Particularly useful ones in our experience is the WATCH file from the Harry Ransom Centre, University of Texas, and Grace’s Guide is a particularly useful guide about the history of industry in Britain.

But we also set up, you’ll see at the top there’s a thing called Drew Diligence Rights and Contracts, that’s our Facebook page that we set up, and I think that’s probably one of the best decisions we made in this project because we didn’t really want to have to use my personal Facebook account to go and track people down, so we set this up so we could, and there’s quite a few films that we did manage to unearth by doing that.

There’s also an awful lot of forums out there, fan pages and forums that have a huge amount of information, and rather like Sherlock goes out and uses his street networks to get information and intelligence, this is a key thing that we ended up doing. Crowdsourcing rights information is the objective of the EnDOW project, led by Maurizio Borghi (Bournemouth) who is here.

The EnDOW platform, and if you haven’t looked at it do go and check it out, it’s basically developing a platform so that cultural heritage institutions can engage crowds to crowdsource diligent search.

This list here [on the slide] which you can’t read, and that is deliberate … so while I had all these logos of sources that you could go and refer to on the other slide, this list is actually taken from the site, because it’s the list of all the sources that you have to go and look at under the IPO guidance to do a diligent search in the UK, and I think there’s two hundred and twenty something of them, so have fun with that.

Now, Exploding Sausages … , I’ve put this up mainly because my colleague, Emma Cook, ,  she was our Facebook page person, she was the one who did all the diligent search, she stalked people, and I asked her of all the orphan works, which one was the most fun, and she said this one, partly  because the name is just fantastic.

So I’ve summarised on the slide some of the actions she did to try and find rights holders for this film, you can watch it on BFI Player.

With this one we didn’t manage to get permission from any of the filmmakers, we did however manage to get in touch with some people from the Bonzo Dog Band, and indeed their families, who were very happy for this film to be digitised and to be put onto BFI Player.

So we have registered this as an orphan, technically it’s a partial orphan because we didn’t actually get a formal licence for the music rights, but we got permission from the family of the band and  we thought that’s good enough for us really.

Diligent search can also lead you to finding rights holders.  I’ve got two examples here of films where we did manage to locate rights holders, and sometimes these diligent searches uncover quite interesting tales themselves.

The Cocaine film, Graham Cutts, 1922.  Graham Cutts was a contemporary of Hitchcock, in fact Hitchcock was his apprentice.  The website and IMDb showed that Graham Cutts had a daughter called Patricia.  Wikipedia showed that Patricia was an actress who had appeared as the original Blanche Hunt, Deirdre Barlow’s mum, on Coronation Street, before finally committing suicide in the seventies.

Ancestry then showed us that she had left a son and three grandchildren and provided the names for us.  We then looked for those grandchildren, and that led us to the mother of one of the grandchildren who happened to be Macaulay Culkin’s stepmother.  We found that out also through the Guardian obituary page.

And then it was through Facebook that we finally found a grandchild who was very happy to respond and put us in touch with her father, Patricia Cutts’ son, and the estate in an isolated part of California in a trailer park, and they gave us permission to use the film.

The second one, Getting It Straight In Notting Hill Gate.  So Joe Gannon was Pink Floyd’s first lighting designer and light show pioneer.  However, there was another Joe Gannon who was also a stage lighting designer but this time for Alice Cooper during the same period.

So research led us in completely the wrong direction initially.  Alice Cooper’s Joe Gannon now owns a restaurant in Hawaii, and after months of chasing him, and we did actually say we wanted to book a table at one point to try and get their attention, he finally explained no, you’ve got the wrong guy.

So then we had to go back to the beginning.  Helpfully a colleague then recommended contacting Peter Wynne-Wilson who also did stage lighting at the time.  He replied, gave us leads to other colleagues who were in the industry back then, namely a chap called Jeff Dexter who programmed the very first Glastonbury Festival, and he was able to put us in touch with Joe who has radically changed careers and now lives in Vermont as a Town Official, and gave us permission.

In terms of orphan works, we started off with a potential pool of three hundred and seventy-nine orphans.  Through our diligent search Facebook page, we managed to de-orphan one hundred and six of those and we’ve registered two hundred and seventy-three on the EU IPO database, and you’ll see the orphan works come from a spread of dates and eras with the fifties and the sixties having the largest number.

We’ll be making available an orphan works on a playlist on YouTube, at the moment they’re only available on Player which means you can only see them in the UK and Ireland, and we want to enable wider access particularly through the EU because the orphan works exception allows for mutual recognition of orphan works across the EU.

A few final reflections.  Please sort out your rights data and information, and don’t create new orphan works.  I think there also should be recognition that rights researchers have a very particular set of skills, because you have to use a lot of common sense, there is a lot of information that’s out there, follow your hunches to find people. I refer to my colleague, Emma Cook, as  the Liam Neeson of rights research, she will look for you, she will find you, and she will licence it from you.

To end on a bit of a Sherlock quote again.  The idea that a diligent search will lead you to either determining a work as an orphan or finding the rights holder, ultimately what are you wanting to do?  And it seems to me you could say it’s a win-win situation.  Ultimately we want to find rights holders, and the stories that they can tell are usually very interesting and they add to the information around your collections, but if we don’t find them we still have this orphan exception to use.  So it’s really that there is no right answer, it’s just that there is an answer, and that’s a good thing.  Thank you very much.