Continuing the Research Blog Series, Kerry Patterson presents a project that explores the issue of Orphan Works using the case study of the Edwin Morgan Scrapbooks.
Project: Digitising the Edwin Morgan Scrapbooks
Investigators: PI – Ronan Deazley (now Queen’s University Belfast), Co-I – Sarah Hepworth (Special Collections, University of Glasgow), RA – Kerry Patterson (CREATe, University of Glasgow)
What did your research aim to do?
Cultural heritage institutions are struggling to enable digital access to works in their collections when copyright owners cannot be identified or located. The problem of orphan works has been addressed in part by the EU Orphan Works Directive 2012 and the UK Orphan Works Licensing Scheme (OWLS), but our research explored the impact of these solutions and questioned whether they are fit for purpose. We aimed to address the need for better, more robust data about the impact that copyright has on digitisation initiatives, and provide research and guidance on orphan works and diligent search.
How did you do it?
The researchers adopted a case study approach and performed a rights clearance simulation on a sample of the Edwin Morgan scrapbooks, a collection of mixed-media works compiled by the Scottish poet between the 1930s and 1960s.
What are your key findings?
Research confirmed the substantial problem that orphan works pose for cultural heritage institutions who want to enable the widest possible digital engagement with our shared cultural heritage. As the UK has the exception implemented under the Orphan Works Directive operating in tandem with OWLS, UK institutions have greater opportunities than those in other European countries for developing digitisation initiatives that can be tailored to institutional collections, needs, budgets and ambition. For anything other than small-scale digitisation projects, the long-term efficacy and relevance of both schemes appears fatally compromised by the demands of diligent search.
Whenever choosing to make copyright-protected material available online, risk plays an inevitable role in shaping digitisation strategies. Indeed, the solution to the problem of orphan works adopted by the Directive requires taking risks, in that reliance on the exception provides no guarantee of immunity from future litigation. For anything beyond a small-scale digitisation initiative, risk-management will not just shape a digitisation strategy, it will lie at its very core.
What impact has your work had so far/what impact do you anticipate it will have?
The project is significant in being was the first UK study addressing the legal and practical realities of diligent search since the Directive and OWLS came into effect. The resource has been presented at a number of capacity-building events and conferences for the cultural heritage sector and the research is available to read or download, along with a set of downloadable copyright guidance notes aimed to the cultural heritage sector. These provide clear, authoritative and practical guidance on a range of issues relevant for institutions engaging in similar digitisation initiatives. The online resource also includes an interactive sample of the scrapbooks, clearly demonstrating the benefits of adopting a risk-based approach to digitisation. We have also provided our research data and the software developed for the interactive scrapbooks tool, for free.
Challenges encountered/Lessons learned
One of the original intentions was to directly compare the EU Directive and UK OWLS using the interactive visualisation, however the rights clearance exercise showed that the nature of the works within the scrapbooks did not demonstrate this as explicitly as we had planned.
Are there additional/new research questions still to be answered in this area?
Collection and analysis of evidence regarding the extent of use of both the Directive and OWLS
How has your association with CREATe helped to take things forward?
CREATe’s connections with partners including the National Archives, the Archives and Records Association, the Scottish Council on Archives, the British Library, the National Library of Scotland and the Wellcome Trust have been beneficial in providing support and a raised profile.