Currencies are a hot topic at present, and copyright has been characterised as the “currency of the creative economy”. Important changes to copyright law are currently subject to consultation, in an exercise which runs until 21 March.
To help creative businesses decide whether and how to respond to these proposals, CI KTN will be generating a series of articles over the next fortnight. These will look at key elements of the proposed changes, accompanied by industry perspectives on them. This first article is an introduction to put these developments into perspective.
Copyright changes: the context
These proposals follow recommendations made in the 2011 Hargreaves Review
and subsequently accepted by Government. The Review set out a number of measures which it is believed will make IP law better suited to the digital age.
Two workstreams concern copyright law, and therefore have special relevance for the creative industries:
- The potential establishment of a Digital Copyright Exchange or DCE, intended to make it simpler to license digital works legally. This is undergoing two phases of scrutiny, the first of which has recently closed. You can read CI KTN’s submission, featuring evidence drawn from its 2011 Beacon Project on IP and Open Source.
- The introduction of a number of copyright “exceptions” which are already permitted by European IP law, but which the UK has not brought into statute in the past.
This second workstream is the one currently subject to a consultation exercise, which is being managed by the Intellectual Property Office (IPO).
Scope of the changes
The IPO website summarises the scope of this exercise as follows:
The consultation covers the rules on copying for educational uses, for people with disabilities, for quotation and reporting current events, for preservation by libraries and archives, for research and private study, for text mining for research, for parody, and for public administration. It proposes protecting all those users’ rights from being removed by contracts. It also proposes a solution to the problem of orphan works, and proposes regulation of copyright Collecting Societies.
CI KTN has singled out eight areas where it believes members may have strong and divergent views, each of which will form the basis for a separate article. These eight areas are:
i) Orphan works
(those without an identified copyright owner). Measures are being considered to allow easier access to works believed to be orphan, accompanied by steps to protect legitimate rights holders, including precautions to prevent works being intentionally orphaned.
ii) Extended collective licensing. It is proposed that authorised societies should be enabled to collect copyright licensing incomes on behalf of any organisation or person in their sector who has not opted out of the collecting mechanism. This amends an established principle that only a rights owner can provide consent to usage, or explicitly delegate this power.
iii) Codes of conduct. Since collecting societies will be provided with quasi-monopolistic powers under the above proposal, precautions are needed to ensure that their operation is clear and transparent. While self-regulation is preferred, statutory powers to intervene are likely to be sought.
iv) Limited private copying. This aims to bring popular practice within the law. It is defined as being ‘non-commercial’ and is intended to be format and technology neutral. It is suggested that the costs of this change should be factored into the price of the work at the point of sale.
v) Preservation and archiving. These changes are aimed at creating a level playing field across different media formats (it will effectively extend the same rights to those copying audio-visual materials and sound recordings as already exist for books).
vi) ‘Fair dealing’ extension. Permission already exists to reproduce extracts from copyright material without the need for permission, for the purposes of research, private study, criticism and review. At present this only applies to specified media, and the intention is to broaden it to include audio/visual and broadcast media.
vii) Text and data mining. At present whole works cannot be scanned, for instance to conduct scientific research, unless a specific licence to do so is provided. This is held by some to be a barrier to innovation. Initially changes would be restricted to non-commercial uses, but there are suggestions this exception should be broadened.
viii) Parody and pastiche is at present not adequately covered by ‘fair dealing’. This is seen as a freedom of speech issue, though it is also acknowledged that rights owners should be able to protect the integrity of their original work.
The consultation document, which sets out the Government’s proposals in detail over 171 pages, can be found on the IPO website here
. There is also a separate, formal response form which contains the 114 questions posed by the consultation document,which can be found here
. The IPO has made it clear that it welcomes responses which are limited to just a few points of particular interest, as well as those wishing to comment on all aspects.
In order to help interested parties to understand the scope and implications of the proposed changes, IPO has also organised a number of regional engagement events. These include one on 29 February at Cardiff City Stadium, one on 8 March at Leeds United Conference and Events, and one on 9 March at Birmingham Science Park. Places are limited at these events, but you can request a ticket via the link currently shown on the IPO’s home page
The closing date for responses is 21 March 2012, following which the Government will consider the best way forward. Responses should either be sent via e-mail to email@example.com
or posted to David Burgess at the IPO’s London office, details of which are provided in the documentation.
Works become orphaned for a number of reasons. There may be insufficient information available to identify them (sometimes because of prior format shifting); they can be identifiable, but their owner untraceable; they may have been re-assigned to an unknown owner; the originator may have died and left no information on the subsequent rights owner; or they may have belonged to a business that has ceased trading, leaving no evidence on who now owns the copyright.
Authoritative data on the scale of the problem is scarce, but a 2009 exercise, In from the Cold
, by the Collections Trust and the Strategic Content Alliance concluded that there were around 25 million orphans in public collections – an average of 5-10% of all works held by those surveyed. Many of these works were characterised as being non-commercial, but of considerable academic and cultural merit.
Where works are orphan, they cannot legally be used without the owner’s consent. This not only prevents commercial re-use but also technically prohibits their reproduction for purposes of archiving, preservation or digitisation. In practice, this is often dealt with by sidelining the works, resulting in a dearth of material for researchers. Recent works are particularly badly affected due to the duration of copyright protection: Dame Lynne Brindley, CEO of the British Library, has explained that “our digitising projects are very much skewed to pre-1900 projects, as the amount of in-copyright and Orphan Works will be statistically relatively low.”
The alternative is to undertake due diligence activities to try to locate the owner. Paper or digital records are kept of these attempts, which may provide some protection against a subsequent claim for infringement. However, this represents a large management overhead with a low success rate, and does not of itself alter the fact that the organisation in question is seeking to break the law.
The orphan works issue is also likely to get worse. The pace of technological change and absence of universal standards for data capture means that media-rich content is currently being created with uncertain rights ownerships and permissions. As In from the Cold put it, “The user generated content of today is likely to be the Orphan Works of tomorrow.”
- The IPO has concluded that legislation is needed to overcome the orphan works problem, and that this should enable the lawful (non-exclusive) use of individual orphan works after a diligent search, confirmed by an authorising body such as a collecting society or a public body like the Copyright Tribunal.
- A fee will be payable for the use, which should in principle be a ‘market rate’. Provision must be made to remunerate rights owners who subsequently come to light, either through an upfront charge or a commitment to pay in the future.
- Commercial use should be permitted (particularly since it is hard to distinguish commercial from non-commercial use in many contexts) and there should be sanctions against the removal of metadata which would create orphan works.
Having an orphan works scheme should allow rights holders to gain income from a situation where there would otherwise have been no exploitation at all, or illegal use. Should a rights holder make a legitimate claim to an orphan work, which appears more likely under a formal scheme, they would regain control of it.
These provisions for orphan works are closely related to other potential changes, such as extended collective licensing (particularly relevant for large-scale digitisation projects), the regulation of collecting societies, strengthening the exceptions for preservation and archiving, and the establishment of a Digital Copyright Exchange. For example, a successful DCE would almost certainly become the logical first port of call for a diligent search.
Question numbers 1 – 21 in the consultation exercise are about orphan works, and the IPO is particularly interested in insights on the following aspects:
- Statistics on orphan works holdings
- Experiences of trying to clear or use these works
- Cross-border issues of ownership and use
- What should happen when it is not possible to be sure whether copyright still applies
- The pros and cons of limiting a scheme to work that has been published or broadcast
- The timescales that should apply to copyright for this purpose
- Arguments for and against commercial or non-commercial use of orphan works, and the potential effect on competition
- Which body (or bodies) should authorise orphan use
- What constitutes a diligent search, who should conduct it, and what reliance should subsequently be placed on its findings
- The level of usage fees, and whether these should be upfront or delayed
- The implications of changes to orphan works on moral rights
- How long an authorisation to use an orphan work (or a collection of them) should last