net.wars: Orphans in a storm

by Wendy M Grossman | posted on 14 June 2013

At last week's ORGCon I moderated a panel on orphan works. Specifically, about the recent so-called "Instagram Act", more correctly the Enterprise and Regulatory Reform Act. The panel provided some clarification of this rather contentious bit of new law, courtesy of participants Nick Munn from the UK's Intellectual Property Office (PDF); Emily Goodhand, who is both the copyright and compliance officer at the University of Reading and the vice-chair of the Libraries and Archives Copyright Alliance; the independent barrister and Open Rights Group advisory council member Francis Davey; and photographer and security consultant Daniel Cuthbert

Wendy M Grossman

Orphan work may mean anything from an unpublished 16th century poem, which under UK law is under perpetual copyright until or unless someone with the legal right to do so authorizes publication, to a photograph taken yesterday, stripped of its identifying metadata, and posted anonymously on Tumblr without a license explicitly permitting reuse. Legally speaking, reusing these orphan works is off-limits. Not that this ever stopped anyone from posting now, worrying later.

The big difficulty is this: there are billions of orphan works, and millions more are being created every day. Dropping the registration and renewal requirements, as the US did in 1976, ended the documentation of copyright owners. Also a factor, Facebook and some other social networks deliberately strip photographs of their metadata. Photographers are angry about this, but there are legitimate security reasons to remove the geotagging that might lead the creepy adult to the door of the cute, little blonde child.

Some percentage of those orphans are works whose creators are known but whose owners are still a mystery because the publishers that demanded all-rights contracts have gone bust, merged, had their assets bought and resold, or generally vanished.

There are all sorts of reasons why this situation needs to change. For one thing, libraries and archives can't publish or copy, even for preservation, the centuries-old unpublished works they hold. Hordes of photographs can't legally be copied but that, posted online to a Galaxy Zoo-style site, could be identified if enough people looked at them. Finally, an orphan work that no one can access is no good to anyone.

The big fly in this particular slab of frozen amber is photography. Text can be easily searched. Film and music can be compared to other recordings by the same individuals or of the same material. But how easy is it to indisputably distinguish my photograph of the pagoda in Kew Gardens from all the others taken under similar weather and lighting conditions? Professional photographers complain that even commercial news organizations that know better use found images and offer minimal payment only if challenged. Recent years have seen real problems with abusive licensing demands from the big electronic picture agencies, but this is different: it's simple theft. (A big help here should be the October 2012 addition of a small claims court copyright track; the limit is being raised to £10,000.)

To avoid legalizing this kind of theft, the plan, derived from laws in other countries such as Canada and Hungary, is to require a "diligent search" for the owner before an authority grants a license to use the work. To deter people from cheating, there's also some thought of requiring licensing fees up front. The exact definition of "diligent search", how a "market rate" for licenses might be calculated, and who gets to hold the money and use the unclaimed portion are the really contentious elements.

A couple of audience members raised two additional issues. First, whether those pursuing licenses to use orphan works will be allowed to pay to accelerate the process, as is apparently the case in Japan. Second, whether computer programs (and games) will be included. The latter is something the IPO hadn't considered - and it's important, not just because people are nostalgic forthe favorite computer games of their childhood, but because both businesses and individuals may have years' worth of work locked up in software that goes out of development.

Museums and archives have pointed out that paying up front for the millions of works in their collections is prohibitively expensive, no matter how small you make the fee, which is mostly going to come out of taxpayers' money. Even at a fixed fee per year, it makes no sense to rob museums to pay collection societies. This problem seems easily fixed by exempting these institutions, perhaps by allowing them to digitize now, pay later. Commercial organizations, which should pay market rate, have a different problem: "market rate" is infinitely flexible and varies considerably over time. A photograph of a ten-year-old staring intently at a drain is worth nothing except to its family - until that kid grows up to be a Nobel Prize-winning physicist.

Of some concern, as Glyn Moody noted, is that the group charged with proposing answers to these questions is almost entirely composed of copyright organizations and entirely lacks representatives of the general public, who are also creators and therefore stakeholders. At the panel, Munn said that it's just a starting point after which there will be a public consultation on the proposed rules. Keep watching.

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Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, follow on Twitter or send email to netwars(at) (but please turn off HTML).