An orphan work is a copyrighted work but one where the copyright owner can no longer be located.
Copyright is a property right that subsists in certain types of work and these are defined in UK law in Section 1 (and related sections) of the Copyright, Design and Patents Act (CDPA) 1988 and cover a range of artistic work from paintings, photographs and graphic work to literary works, films, broadcasts and sound recordings.
The significance of orphan works to the EU lies in promoting and advancing our European cultural heritage that rests in the millions of artistic images and other artistic works that are held by museums, archives and libraries and other institutions that could now be freely used by these institutions in certain profitable enterprises.
In September there were two key developments that took place for the use of Orphan works.
Firstly on 12th September – Europeana (a digital portal) gave everyone, (including commercial companies) free use of the metadata attached to 20 million digitized objects.
Secondly on September 13th the European Parliament voted through a directive that would allow access to “orphan works.”
The two developments are interconnected as many of the contributors to Europeana’s database are the museums, archives and libraries.
The Directive concerns “certain uses of orphan works undertaken by publicly accessible libraries, educational establishments or museums as well as by archives, film and audio heritage institutions, publishers and public service broadcasting organizations established in the Member States.”
The proposals to the European Parliament are for a cultural institution to make a “good faith” and “reasonable diligent” search but only by an authorised party and only in the Country where the work was first published or broadcasted and the results of the search would have to be recorded and publicly accessible. (See amendments 12 and 13 to the Directive below)
“(12) Before a work can be considered an orphan work, a good faith and reasonable diligent search for the rightholder should be carried out. Member States should be permitted to provide that such a diligent search may be carried out by the organisations referred to in this Directive or by other authorised organisations.”
(13) It is appropriate to provide for a harmonised approach concerning such diligent search in order to ensure a high level of protection of copyright in the Union. A diligent search should involve the consultation of publicly accessible databases that supply information on the copyright status of a work. In order to avoid duplication of search efforts, a diligent search should be conducted only in the Member State where the work was first published or broadcast. Moreover, in order to avoid duplication of costly digitisation and ascertain whether a work has been granted orphan status in another Member State, Member States should ensure that the results of the diligent search on their territory and use of orphan works by the organisations referred to in this Directive are recorded in a publicly accessible database. To the extent possible, free, publicly accessible databases of search results and use of orphan works should be designed and implemented so as to permit interlinkage with each other and interoperability on a pan-European level and consultation thereof through a single entry point.
Click here to see the Directive.
The law is restricted to certain institutions and to certain projects.
Most exciting are the potential business opportunities for these organisations in producing apps, games and online interactive data designed for tablets, smartphones and PCs, giving the public access to these artistic images and providing the organisations the opportunity to profit from the use of those images, to the extent that they cover their costs of digitising the work.
However further business models are envisaged– such as linked open data projects that see collaborations between museums and the tourist industry.
This could possibly lead to income generation for institutions, such as public libraries that face constant budget cuts and less financial support in a recession period.
The directive regularises the position and frees up the use of this wealth of culture buried in the archives of these institutions but in limited circumstances.
The extension of the law under the EU directive is still restrictive and still protects the artist’s moral rights.
Importantly however the European Orphan Works proposal would not replace Member State’s current legislation.
In the UK – there is no law on Orphan Works.
The IPO (Intellectual Property Office, previously called the Patent Office) have quickly sought to respond to the EU directive with a plan to introduce a law through the Enterprise and Regulatory Reform Bill. (Currently still at a Committee Stage.)
Looking at the Bill, it gives the Secretary State the broad power through Regulation to grant licences for use of this material.
From a wider perspective there are millions of artistic images online, on Google Images for example that can also be classified as Orphan works.
The UK proposals and the Hargreaves report are arguably concerned with this broader picture of publishing and broadcasting artistic works online and the copyright challenges of the Modern Digital era presented by publication on YouTube, Facebook, Twitter, Pinterest etc.
The UK’s proposals go much further in permitting use of orphan works, by allowing all commercial companies to use the images rather than just limiting it to cultural institutions.
These proposals go as far as allowing use of all images unless there is an opt-out and this requires registration of all of those opt-out images in a “hands off database.”
This fundamentally flags the tensions between UK and EU law, namely that this extension may ultimately encroach on artists moral rights. The EU law is concerned with the cultural benefits whereas the UK seems concerned with the consumer and commercial benefits.
There no doubt will be opposition and challenge to the proposals and any changes to the law that are contrary to EU Law, in particular the Berne Convention for the Protection of Literary and Artistic Works.
Two questions for the IPO –
Is it the general public or is it commercial companies that cry out for an extension of the law to allow for use of orphan works?
And are these proposed changes at the expense of UK’s creative talent?
Watch this space as the law unfolds at an EU and National Level.
Jessica Franses