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A crowded orphanage - copyright update

AUTUMN is already seeing a flutter of initiatives on "orphaned works" - words, pictures and sounds for whom no author can be traced. Mike Holderness reports:

As the Freelance has previously reported, libraries' wish to digitise and distribute works without asking whether they can find their author or not - and Google's attempt to redefine the word "library" to mean "Google" - may well be a bigger threat to the framework of authors' rights and to journalists' income than the possibility of a scheme for commercial use of orphaned works.

If "library" comes to mean "copies of anything delivered to your computer" then we could all suddenly be dependent on Google's decision of what our share of its income is as payment for pretty much all uses of our work after first publication.

1) USA

The renewed orphan works legislation predicted in the early summer (www.londonfreelance.org/fl/0907orph.html) has not materialised. Interested parties I have asked appear genuinely to have no idea when it's coming back or what form it would take.

The US Copyright Office has been lobbied to remove any requirement at all for "diligent search" for a author. That would be Google, backed by some libraries.

Also, of course, there's the Google Books settlement (www.londonfreelance.org/fl/0909goog.html). One of the legal grounds of the objectors to the Settlement is that it would give Google an effective monopoly over distribution and making-available of orphaned works (not images, for the moment).

It is likely that Microsoft's objection to the New York court (and others from major Google competitors) will - in a seriously irony-impaired move - object that the whole idea of a collecting society is "monopolistic" too. They're likely to do this simply because the argument is out there, already set out by anti-copyright types, and they'll want to put in every objection they can think of.

2) EU

On 7 September EU Commissioners (Civil Service chiefs) Reding of the "Information Society" department and McCreevy of "Market" issued a joint statement coinciding with the Commission's consultation on the Google Books Settlement, saying they plan to:

ensure a regulatory framework which paves the way for a rapid roll-out of services, similar to those made possible in the United Sates by the recent settlement, to European consumers and to the European library and research communities... Is Europe's copyright framework modern enough when it comes to digitising orphan works and out-of print works?

"It goes without saying," they say, "that digitisation of copyrighted works must fully respect copyright rules and fairly reward authors."

The official text (see www.Reding-McCreevy.notlong.com) reveals that the publishers, Google, libraries and "consumer associations" had their own consultation with Reding on 8 September, following the consultation organised by "Market" that I went to on 7 September, which included all the above plus some authors. It is sadly typical of the "Information Society" department to exclude authors.

I expect that the Commission will face very strong pressure for a "library exception" that would give them - and Google - permission to copy all works, orphaned and parented.

I expect, given the Commissioners' statement, that this would come with some kind of payment, via collecting societies. Would this come from central funds? From the income of the googlibrary? Who would set it?

3) UK

It is confirmed that the government contemplates introducing legislation on orphaned works in the Queen's Speech: see para 39-47 of its Digital Britain report Chapter 4 (www.culture.gov.uk/images/publications/chpt4_digitalbritain-finalreport-jun09.pdf).

The good news is that proposals to deal with orphaned works as if they were abandoned bank accounts - to have them owned by the government under the so-called "bona vacantia" rule - are abandoned. The intention is to introduce a form of "extended collective licensing". To recap, in this scheme:

  1. Government authorises bodies - for example collecting societies - to licence use of orphaned works.
  2. The authorisation would specify:
    1. That a licence must be obtained in advance;
    2. That there is a fee (Britich Copyright Council proposal says "commensurate with the prevailing fees for normally-issued licences for those uses");
    3. That there are specified standards for what constitutes a "diligent search" for an author; and
    4. That licence fees be paid to revenant rightsholders.
  3. It is likely, not cast-iron, that the unallocated funds would be used for the benefit of creators.

This is all in accord with the principles the NUJ agreed on last year, though we do not yet know how completely.

The bad news is that the intention seems to be to pass very broad enabling legislation ("primary legislation" - the Bill/Act), to allow the Minister to draft Statutory Instruments ("secondary legislation"). There is an indication that these would be "positive resolution" SIs - but the Parliamentary means for challenging even these are limited. So we'd be left with consultation.

What if Google and the libraries, for example, come back to government again and again demanding new SIs?

It is likely that the proposal will be to grant three powers:

  1. To make SIs on authorising bodies to licence orphaned works;
  2. Ditto, making extended collective licensing legal in the UK;
  3. Ditto, setting out government supervision of collecting societies (esp. in the orphaned works role).

UK government has noted photographers' specific concerns - see the Digital Britain report for evidence. Some officials have suggested that under orphaned works legislation photographers in particular would have more options to deal with theft than at present: they could make an administrative claim from a collecting society instead of deciding that they cannot afford to pursue a lawsuit.

The NUJ's Freelance Industrial Council agreed on 15 September to look at ways of tightening the legislation and to continue pointing out that it is absurd to legislate for use of works whose authors cannot be identified unless all authors, including journalists, have a legal right to be identified.

4) Hungary

On 28 December 2008 Hungary's National Assembly passed legislation on orphaned works that meets the principles listed above and also provides that:

  • a revenant author who does not find the remuneration fixed by the Patent Office (or its delegate collecting society) appropriate may go to court to establish the proper amount;
  • when an author appears the licence granted continues for one year;
  • the licence explicitly does not cover re-licensing or derivative works;
  • if the use is non-income-generating, the fee is payable only when the author appears (don't like this!);
  • there is a voluntary database of works, maintained by the Patent Office.

This rather scuppers the UK's desire to be the trend-setter in the EU. If Something Must Be Done, it seems like as good a model as any.

5) Southport

The NUJ's Freelance Industrial Council agreed to put the following motion to the union's Annual Delegate Meeting, which takes place in Southport, Merseyside on 19-22 November. The Queen's Speech, at which any legislation would be announced, is on 18 November.

This ADM notes with some alarm the recent deluge of proposals to make journalists' work - indeed everything ever published or broadcast - available online without either permission or adequate compensation -- and the announcement in the Queen's Speech on 18 November expected following meetings with the EU Commission on 7 September and with UK government officials on 8 September. . In particular, ADM is concerned about the terms of the proposed Google Books Settlement; about demands from libraries to be able to copy everything and distribute it online to the public; and about the dangers inherent in proposals to allow commercial use of so-called "orphan works" without adequate safeguards.

ADM instructs the NEC to give all necessary support to a campaign, with fellow International Federation of Journalists member unions and other creators' organisations, directed at the UK, Irish, and US governments and the EU, in support of the principles:

  1. that all journalists, whether staff or freelance, photographer or writer, must have an unwaivable and enforceable legal right to a credit appearing with and staying with their works;
  2. that all should have an unwaivable and enforceable right to defend the integrity of their works and in particular to stop them being used in ways and contexts that contravene journalistic ethics;
  3. that there should be an unwaivable right, enshrined in law, for all journalists to receive equitable payment for use and re-use of their work;
  4. that any scheme by which publishers, broadcasters or others such as internet services purport to distribute payments to journalists must be accountable and transparent;
  5. that no licence to use an "orphan work" must be granted unless it is by a body representing authors, is paid for in advance at the going rate for that use, and is subject to clear rules on the steps needed to find authors (including, for the avoidance of doubt, photographers);
  6. that governments must intervene to ensure that there are effective means for would-be users identifying the authors of works, especially photographic works, such as voluntary databases;
  7. that all journalists should have effective means to get deterrent compensation from those who steal their work, wherever this happens.
Last modified: 21 Sep 2009 - © 2009 contributors
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