Has the UK abolished copyright? Analysis of new orphan work legislation

Please, sir, I want some more copyright protection

Has the UK abolished copyright law with the passing of orphan works legislation? I’ll answer quickly with Betteridge’s Law of Headlines: NO.

However, if you listen to some copyright maximalist outlets, and particularly to the photograph lobby, you would believe that all copyright has been abolished as of now. Just look at some of the headlines:

• UK.Gov passes Instagram Act: All your pics belong to everyone now (wtih the even more delightful subtitle: “Everyone = Silicon Valley ad platforms tech companies”, subtlety was never one of Orlowski’s strengths).
• UK copyright owners no longer control the right to copy their work (the URL for this reads Cretins 1, Creators 0).
• Did the UK just abolish copyright? (a bit more measured)

Although all of the above coverage is a distorted exaggeration of the actual law, one has to give some credit to Andrew Orlowski for beating everyone to the news and setting the tone of the debate by warning that Google owns everyone’s pictures now, and by coining a media-friendly term Instagram Act. Well played, sir, well played.

So, I will first explain what are orphan works, why do they matter, and what is actually in the law.

Orphan works

The term orphan work is widely used to define copyright works for which no author can be found after an exhaustive search. This area has been identified as of serious concern for galleries, archives, publishers, film-makers, museums, libraries, researchers, universities, and private users, as sometimes good-faith uses are not possible by the difficulty of finding the owner of a work A 2006 report by the US Register of Copyrights found that:

“Archives, libraries and museums maintain vast collections (in some cases, millions) of photographs, very few of which have any indication of who the author was. Typically these institutions acquire these works by donation, such as where individuals give personal effects to a museum upon the death of a family member, or where a scholar donates professional writings to a library upon retirement, and similar situations. While these occurrences are common, the donors rarely have information about the copyright provenance of the materials they donate. These institutions then face a dilemma in striving to meet the expectations of donors and in fulfilling their institutional purpose of preserving and making works available, while also complying with the law of copyright and minimizing their exposure to liability for infringement.”

A EU report similarly stated the problem of orphan works sating that “Comprehensive, large scale digitisation and online accessibility could be greatly hampered, if adequate solutions are not found to the problem of orphan works.” A joint report by JISC, the British Library, the BBC, and other public bodies found that the amount of orphan works held in public sectors institutions ranged from 5-10%, with some sectors holding considerably higher percentages. In total, the report found that there were an estimated 25 million orphan works held in public collections.

Both the Gowers and Hargreaves reports on IP made very strong recommendations in favour of orphan works legislation. The Hargreaves Review specifically commented that:

“These works raise particular difficulties in the context of mass digitisation. Libraries and archives seek to digitise collections, and have the technological capacity to do so and to provide access to them for users, but they are unable to act where rights holders cannot be found for some of the works, because to digitise those works could be a copyright infringement. The issue is exacerbated in that where rights information is lacking, it is often not even clear whether works are still in copyright or not. There are two distinct situations to consider: mass licensing of collections which include some orphans, and use of individual orphan works.”

The dismissal of the orphan work issue presented by some of the articles opposing changes to the legislation is therefore laughable. This is a serious issue that affects memory institutions, but also stifles important digitisation efforts by private bodies.

Legislative solutions

There are usually three solutions offered to solve the orphan work conundrum. First is to create some form of exception or limitation to existing rights. The second is to create a form of licensing scheme in which bodies pay a price that will eventually be given to authors, if they can be found. The third is to create some form of register of orphan works. Some of the most notable concrete solutions out there are:

• The US tried to implement legislation on the subject, particularly in the Orphan Works Act of 2008 and the Shawn Bentley Orphan Works Act of 2008. After strong opposition from the commercial photographers lobby, both efforts failed.
• Canada has in place an “Unlocatable Owner Provision”, by which a person can apply for a licence to the Copyright Board if, after exercising due diligence, an author cannot be found. Needless to say, copyright seems to be doing quite well in Canada despite having this type of licensing scheme in their legislation.
• The UK’s Digital Economy Bill contained a section on orphan works, but after fierce opposition from photographers, it was removed.
• The EU has passed the Directive 2012/28/EU on certain permitted uses of orphan works. This mostly sets out a regime for the use of orphan works by libraries, educational establishments, archives, public broadcasting organisations, and museums. This provides an exception or limitation to the right of reproduction and making available to the public to the benefit of any of the listed institutions.

So, this is not really a subject that benefits great media organisations.

The UK Act

Enter the source of so much fear, uncertainty and doubt, the Enterprise and Regulatory Reform Act 2013 (ERRA). This is a broad piece of legislation that makes several changes to existing laws across the board, including finance, employment, competition law, reduction of red-tape, and copyright licensing.

The ERRA is controversial because it is a different solution to that proposed by the EU Directive, it is not limited to memory institutions such as archives, libraries and museums, but it is a broad commercial-use licensing scheme. The new section of the UK’s CDPA will read:

“116A Power to provide for licensing of orphan works
(1) The Secretary of State may by regulations provide for the grant of licences in respect of works that qualify as orphan works under the regulations.”

This says that the law is not the final word on the subject, and that we have to wait for the Secretary of State of provide more detail through forthcoming regulation, which one has to assume will be released in the near future. This serves to explain the very acrimonious language that is being used by the opponents of orphan work legislation, they are trying to force a U-Turn from the government, or at least a very watered-down licensing scheme that will be good for nothing.

The key point seems to be in this section:

“(3) The regulations must provide that, for a work to qualify as an orphan work, it is a requirement that the owner of copyright in it has not been found after a diligent search made in accordance with the regulations.”

The definition of “diligent search” will be vital. There are several indications of how this will be defined. The Canadian act is quite clear that this search has to be exhaustive. Similarly, the EU Directive defines diligent search as:

“For the purposes of establishing whether a work or phonogram is an orphan work, the organisations referred to in Article 1(1) shall ensure that a diligent search is carried out in good faith in respect of each work or other protected subject-matter, by consulting the appropriate sources for the category of works and other protected subject-matter in question. The diligent search shall be carried out prior to the use of the work or phonogram.”

It is quite clear that there will be a very high-threshold of what constitutes an orphan work, a simple Google search will not suffice. Countries which have enacted similar legislation do not seem to have had problems so far, and no abuse has been found, at least none that I am aware of, and you can bet that orphan works opponents would be shouting bloody murder if there had been something already.

It is also quite clear that photographers have had fear instilled into them through a concerted campaign. The law will not be likely to affect new works, these have to be assumed to be under copyright. Similarly, metadata is still strongly protected in copyright law by Rights Management Information (see a presentation on the subject that I made for WIPO). Professional photographers should still be able to provide metadata and embed it in their pictures, and such data cannot be removed! So any professional photographer should be as protected after the publication of the ERRA as they were before. It is also highly unlikely that Google will start commercially using images right away, which is the not-very-subtle accusation by Orlowski and his ilk.

We still have to wait for the regulations to come out, but the over-the-top rhetoric and scaremongering have to stop. Orphan work legislation is a good thing, it helps digitisation efforts that will have both cultural and commercial benefits.