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Legal Respondent: Leontien Bout + Panel Discussion

From left to right: Claudy Op den Kamp (BU), Frank Gray (Screen Archive SE), Annabelle Shaw (BFI), Jenny Hammerton (AP) and Leontien Bout (EYE, Amsterdam)

Leontien Bout: Are you very interested in a really nice clip of a canine Sherlock Holmes from 1912?

Claudy Op den Kamp: We’re going to run a little bit over, so can we run the clip please of the canine Sherlock Holmes simultaneously?

Leontien Bout: Well first I’ll briefly introduce myself. My name is Leontien Bout, I work for EYE Film Museum in Amsterdam. We are the counterpart of the BFI for those of you who have never heard of us. I’m the lawyer there and my job is various. I deal with the acquisition contracts, I do the infamous risk assessment for the sales and archival loans departments, and at the moment I’m also very involved like the BFI with orphan works.

And thank you Claudy for having me here today. It’s always fun to come to London. Claudy asked me to act as a legal respondent here today. I have really no idea, Claudy, what that means, but figuring I’m a lawyer that’s half of it covered, so that leaves me with the responding part, and I’ll get right to it.

I’m of course royally screwed because I have nothing prepared so I’ll just have to work my way through it here.

I’ve been listening to all the presentations with great interest of course, and I had a vague idea what you would be saying so I had something prepared yesterday at the airport.

I’ll start with Frank’s presentation if that’s okay, because if I understand Frank correctly he says that they have a pretty good idea, like the Associated Press, of the copyright status of the stuff in their archives. So copyright is not really a huge problem for them but they do concern themselves with moral rights.

Now I was confused a bit at first when I read this because in Holland moral rights work a bit different I guess than they do here. The actual maker, if he dies, the moral rights don’t automatically go to the heirs or the successors, only if they leave them by a Last Will and Testament, which actually I can tell you never, ever happens. I don’t know of any filmmaker who’s ever done that. In fact one of the biggest filmmakers we’ve had in Holland, Bert Haanstra, I asked his sons if he bothered leaving them his moral rights and no he didn’t, so that’s really not an issue with us.

However, we do take into account that there might be non-legal reasons to keep you from making material available for reuse, so not necessarily legal but ethical grounds, and like with Frank’s archive that’s usually amateur material that we are very, very cautious with, in fact we are very hesitant to make that available, and there’s no legal ground keeping us, but it’s more ethical.

And another reason, and it’s something Claudy already mentioned, is that you have to keep your donors and your depositors happy, and in that respect I should note that in Holland we don’t have a legal deposit, so everything that gets into the cinemas in Holland doesn’t automatically end up in our archive, so we are dependent on filmmakers and distributors to give us their material which they will for sure not do if they feel that their material is not safe with us.

We do, however, get everything that is film fund subsidised, but the problem there is that the obligation for the filmmakers is within the agreement, the rent agreement they made with the fund, so that’s not something for us to enforce, so again there we have to keep them happy, give them the idea that everything is fine with us because otherwise we’ll have a big problem.

So what I took from this is that, yes, there might be non-legal grounds that can keep you making material available, and some other examples sprung to mind which I want to share with you that’s in line with this. We have a famous Dutch video artist who is infamous for being really difficult, and when she deposited her material with us she made us put into the agreement that even after her copyright expired we would need permission from her heirs to make the material available, and I think this shows how even beyond the boundaries of copyright you can still be attached to it in a really weird way.

Let’s see if that was everything there, okay … something about orphan works, and like BFI, EYE’s very involved at the moment. We were involved in another project, you were in EnDOW, we were in FORWARD, and you’ve uploaded two hundred and seventy three films, okay we win there, we have almost a thousand and I think you mentioned there were like two hundred and twenty sources that need to be consulted in the UK?

Annabelle Shaw: Yes, that’s right.

Leontien Bout: That sounds really extensive. What we find actually is that the sources, there’s been a huge, I would say, a thinking mistake made by the legislators because the sources at least in Holland they are aimed at finding the makers but not the rights holders, because we figure your biggest chance finding a rights holder is more likely to be in the telephone book or at the Chamber of Commerce than in collective rights management organisations which don’t keep track of heirs.

So what I wondered, and I can almost see you, is how you deal with sources that are clearly useless, I mean do you just skip them or?

Annabelle Shaw: If it’s really obviously useless, yes. The IPO has a checklist and it’s a weird thing about where you start your diligent search because you’ll have information readily available, we have it at the BFI, and then the routes you then take on which, because if you couldn’t find your answer in the source number seventy-three, you could also find it in source number three.

Leontien Bout: Yeah, and then you’re ready.

Annabelle Shaw: And there’ll be things where you sort of say I’m not even going to bother looking at that because I know it won’t help.

Leontien Bout: Yes because we find that some sources are crap anyhow, I mean, so what we sort of figured, we haven’t tried it yet, but as an option is contacting that useless source, and trying to get into an agreement with them in which they say to us okay you don’t need to consult us because we don’t have the information you’re looking for, and that would skip almost half of the sources, so that’s something we’re seriously considering.

And the other thing you didn’t, I wasn’t sure whether you would mention this or not, you didn’t, but I’m curious about whether the BFI allows commercial use of orphan works outside of the licensing scheme that you have, based on the directive and subsequent legislation?

Annabelle Shaw: So we haven’t used the UK licensing scheme at all at the moment. So for the orphan works we’ve registered with the EU on the EU database, currently I don’t think we have done anything commercial with them.

Leontien Bout: You haven’t?

Annabelle Shaw: No. I mean BFI has historically commercially exploited orphans as it were, but may not yet be registered.

Leontien Bout: Okay. But you would consider it?

Annabelle Shaw: Yes.

Leontien Bout: Yes, okay. Yeah, because we at EYE we really don’t care, we think that the directive gives us that space actually, and the other thing is more pragmatic in that we know that for most of our orphan works, we’ve used them before, and nobody has ever come forward to claim anything so there again is a risk assessment that says okay, it’s fine, but again we also think that the directive gives us that space.

And then another thing that struck me in your story is that, do I understand correctly that before you digitise anything you first make sure that the material is cleared?

Annabelle Shaw: No.

Leontien Bout: Oh okay, good.

Annabelle Shaw: It depends on the project, sometimes they will be at the same time. The copyright status doesn’t inform digitisation as the, you know, we don’t say it’s out of copyright therefore we digitise.

Leontien Bout: Okay. I know from our experience we’ve never done it but we’ve had a preservation exception much longer than you have in the UK because I understand from Claudy you’ve just had it like 2½ years?

Annabelle Shaw: Yes, 2014, yeah.

Leontien Bout: Yeah, we’ve had it for at least fifteen, and I don’t think we’ve ever asked anybody’s permission for digitisation. I think we’ve always done it on the basis of either the exception or on the basis of our acquisition agreements in which we clearly state that we might make duplicates or digitisations or whatever, so we think we’re pretty much covered by that.

And again, in our experience, rights holders are usually, actually they’re quite happy if you digitise their material because it saves them a lot of money.

Is there anything else you want me to address, Claudy, or are you absorbed by …?

Claudy Op den Kamp: I think it’s nearly done.

Leontien Bout: Has he found the bank robbers (referring to film being shown) yet or not?

Claudy Op den Kamp: Do you have any comments to the YouTube, Associated Press?

Leontien Bout: No, because I think they’ve got their stuff pretty good together, they are on the other end of the spectrum where archive usually doesn’t hold any rights and partly doesn’t even know where to go and you’ve pretty good.

Jenny Hammerton: Yeah, very lucky.

Leontien Bout: Yes, you are. No, because you’re so lucky I wouldn’t know what to say

Claudy Op den Kamp: If I can ask the panellists to slowly make your way over to the chair, it’s a bit of an experimental set-up here.

I do want to open it up to the floor in case people have questions. We have a roaming mic, so if you do have a question please raise your hand, maybe state who you are if you want to. There’s a question in the middle. I’m going to join them over there to maybe help facilitate.

And I just want to say thank you to everyone for doing this, I thought that was really great and maybe you also have questions for each other, so you can think about that, I think there were a lot of themes that were addressed that might be of interest to people in the audience. Let’s open it up to the floor. I think it’s Ronny Temme over there.

Ronny Temme: Indeed. I was former head of sales at EYE, Amsterdam, the Film Museum. I have a question for Dr. Frank Gray. You mentioned moral rights, and Leontien was talking about ethical rights. When I was working at EYE I got a question from an extreme right political party to use some of our footage, and yeah we are a democratic society, so, you know, what do you say. I thought I couldn’t answer individually so I put the question to the Director of the Institute, at least we were all responsible then. What is your point of view? Let’s say you get a question from Britain First and they want to use some of your footage into their propaganda material, and they’re willing to pay for it, what do you do?

Frank Gray: I’d say no, and I would say that that’s not an arrangement which we can enter into because of the respect we have for our donors and depositors and, as a public sector organisation, however, I would then direct that enquirer, as I would do to any enquirer, to say that there is a whole host of sites you can go to where you can acquire material and use it as you wish, but we will not participate.

Ronny Temme: Good, thank you.

Claudy Op den Kamp: You passed the test. Is the answer different for any of the other archives?

Jenny Hammerton: Yeah. The Associated Press don’t have any rules about who uses our footage and what they use it for. I think in our terms and conditions it says that they can’t bring the Associated Press into disrepute, but the only collection we represent that has a slightly different aspect to it is China Central Television, and that has to have an extra clause in it that any use of their footage should not be used against the people of China or their representatives, or something along those lines, but actually we don’t have any policy about how our material is used if people are licensing it from us.

Frank Gray: If I could just add, of course we enter into all our negotiations with trust. We don’t therefore, if “Ms. Smith” came to us, we didn’t know that she was a member of a far-right party, but she says that she’s making an education film, and it follows a normal archive transaction process, then we’ll end up selling that material to her and, of course, we might not know what the final programme looks like. We don’t, as part of our contractual process, ask to see the final work.

So obviously it is possible for material to be used in ways which we would object to but we don’t have the time to seek redress if we discover that something has been misused. It’s very complicated.

Claudy Op den Kamp: I can’t see anything, so if someone is raising their hand then please get the microphone off someone.

Clare Watson: I’m Clare Watson, Director of Media Archive for Central England. This is a general question, it follows off from something Frank said during his presentation which was about the lack of precedent in law, and I wondered whether anyone could comment on what we can go on in terms of what’s actually been tested, whether that’s in Holland, the UK? There might be other experts sitting in the room that could answer that in terms of, yes, infringing rights.

Frank Gray: Annie, you gave a good answer to that question yesterday when I asked you.

Annabelle Shaw: What was it, I can’t remember. In terms of moral rights you mean specifically or? I mean this isn’t the same one.

Frank Gray: No, it was our understanding, given that we’re not legal historians, that there is an absence of case law.

Annabelle Shaw: Yes.

Frank Gray: Because a lot of the issues which we are interested in there appears to be, someone might know otherwise, but there appears to be very little case law which actually looks at some of the particular issues, whether it’s to do with moral rights or the abuse of copyright regarding audio-visual material.

Annabelle Shaw: Yeah. I mean the US probably has, they do have some great cases about moral rights infringements, but then their moral rights are even more limited and weak than ours.

The only thing I can think of is there is a film related to a moral rights case from about 1913 I think which was Weston Film Company in Glyn, where a company called Weston Film made a film based on a book called Three Weeks by a writer called Elinor Glyn, you can get it from Virago Press I think. It was deemed by a Judge to be morally reprehensible, primarily because an upper-class Englishman is seduced by a Balkan Queen and is taught about the beauty of life and art, it isn’t all about hunting dogs and wellies and empire and stuff like that. And on the basis of that, that was the key part of the story, the Judge said there was no copyright in the book because it wasn’t worthy of copyright given its moral content of the time. That still stands.

The only other one I’m aware of is the Spycatcher novel which obviously was written in breach of, what’s it called, Official Secrets Act, and various other things, so a copyright was denied in that book.

Those are the only two moral rights cases I can think of in the UK, and obviously the Glyn one is a hundred years old now, and morals may have changed slightly since then, so yeah, it would be great if there were other cases to sort of probe the limits of those rights I think.

Frank Gray: And I think it’s particularly in terms of fair dealing as we see the rise of the essay film, which may use extracts taken from a range of archive sources without permission, but there’s something about the intellectual or aesthetic nature of the work which doesn’t provoke legal charges from being made. So it’s interesting to consider how fair dealing operates in this grey area, and how archives often are quite happy for this particular use to continue.

Claudy Op den Kamp: You perfectly bridged to the afternoon there, so we’re going to talk with many more speakers about specifically this topic. I think we have, yes.

Catherine Bond: So I’m a copyright academic from Australia and there will be people in the audience who are much more across what the questions and legal aspects are here. I just wanted to say be careful with the cases that you mentioned because they were different issues to the issues that moral rights specifically that Frank was talking about were raising. There have been some cases in the past where Courts have denied copyright to certain works or denied certain remedies where the works in question were very morally reprehensible, but they’re totally separate to the types of issues that Frank was talking about there, so I think that morality question means different things in different morals. Morals, ethical rights, etc., mean different things, we’re seeing across different jurisdictions even, so just be careful, don’t rely on those cases is what I would say. I’ll pass the mic back now.

Leontien Bout: Let me just add that although there is very, in Holland also very little or no case law based on moral rights with all the official works, there’s one area where moral rights end up in the Courts very often, that’s with architects actually, because they are very quick to claim that their building has been raped or whatever, because somebody pulled up some sunscreens because it’s unworkable inside, and in more cases than not they actually win as well, so that’s an area that does have a lot of litigation on their moral rights, yeah.

Claudy Op den Kamp: To not cut into lunch too much, I think we have room for one more question? I hope there is one, yeah.

Question: Hi there. There was some talk about the European Directive, I’m just wondering how Brexit possibly comes into this?

Annabelle Shaw: Well, the only thing I can really say is the exception has been brought into UK law so we’ll still exist. I mean this is if it, I mean, whatever happens with Brexit, who knows, I don’t know, but on the assumption that any EU law that has been brought into domestic legislation already it will still be there.

The questions I think are more around the mechanics of, we won’t necessarily be able to register them on the EU IPO database because you have to be a beneficiary organisation like Cultural Heritage Institution or a national authority body like the Intellectual Property Office of a member state to actually have an account.

So while that database is obviously accessible to anyone in the world to look at and search, to actually register works you have to be part of a member state.

So whether the UK IPO is thinking about setting up something else or whether they’re going to do a soft border EU IPO access account for, I have no idea, oh I might suggest that, I’ll be at the EU IPO next week so I can ask them.

But yeah, the actual exception will still exist but things like mutual recognition of orphan works which is a key part of the directive which means if we say it’s an orphan, if I were to have the same film in their collection, we’ve said it’s an orphan, you have it, you can say oh it’s an orphan, and that applies, so I’m not sure what will happen to that either.

Frank Gray: I guess the other interesting issue, if the UK wasn’t leaving the EU and the EU continues to have an interest in the harmonisation of particular national laws, that could have a very beneficial impact in this country, this is our fantasy scenario now I imagine, around statutory deposit, because of course what has very much created the archival nature of audio-visual collections in this country is not having statutory deposit, whereas that does exist in many countries within the EU.

So to think about the implications of, you know, so we are where we are, especially in relationship to broadcast and commercial productions because of the absence of statutory deposit, so you could imagine a future where there was, but I think it’s all hypothetical now.

Claudy Op den Kamp: Well on that note, lunch is ready, we’re moving to the blue room which is through that door and then follow the signs to the blue room. I would like to ask everybody to be back punctually at a quarter to two. All these guys are going to be around for their lunch, if you have any questions you can ask them in person, but for now I’d like another round of applause for all the speakers.